{"id":108482,"date":"1996-11-18T00:00:00","date_gmt":"1996-11-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-bengal-waterproof-limited-vs-ms-bombay-waterproof-on-18-november-1996"},"modified":"2015-04-08T01:28:49","modified_gmt":"2015-04-07T19:58:49","slug":"ms-bengal-waterproof-limited-vs-ms-bombay-waterproof-on-18-november-1996","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-bengal-waterproof-limited-vs-ms-bombay-waterproof-on-18-november-1996","title":{"rendered":"M\/S Bengal Waterproof Limited vs M\/S Bombay Waterproof … on 18 November, 1996"},"content":{"rendered":"
Supreme Court of India<\/div>\n
M\/S Bengal Waterproof Limited vs M\/S Bombay Waterproof … on 18 November, 1996<\/div>\n
Author: S Majmudar.<\/div>\n
Bench: A.S. Anand, S.B. Majmudar<\/div>\n
           PETITIONER:\nM\/S BENGAL WATERPROOF LIMITED\n\n\tVs.\n\nRESPONDENT:\nM\/S BOMBAY WATERPROOF MANUFACTURINGCOMPANY & ANOTHER\n\nDATE OF JUDGMENT:\t18\/11\/1996\n\nBENCH:\nA.S. ANAND, S.B. MAJMUDAR\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t      J U D G M E N T
\nS.B. Majmudar. J.\n<\/p>\n
     Leave granted.\n<\/p>\n
     By consent\t of learned  advocates of parties the appeal
\narising from  the Special  Leave Petition  was finally heard
\nand is\tbeing disposed of by this judgment. A short question
\narises for  our consideration  in this\tappeal. It is to the
\neffect as to whether the suit filed by the appellant against
\nthe respondents\t in the\t Court of  Chief Judge,\t City  Civil
\nCourt, Hyderabad  being Original  Suit No.123  of  1982\t was
\nbarred by  the provisions  of Order 2 Rule 2 Sub-rule (3) of
\nthe Code  of Civil  Procedure, 1908  (`CPC’ for\t short). The
\nTrial Court held that the suit was barred by the aforesaid
\nprovisions. We\twill refer to the appellant as plaintiff and
\nthe respondents as defendants for the sake of convenience in
\nlatter part  of this judgment. A learned Single Judge of the
\nHigh Court  of\tAndhra\tPradesh\t held  on  merits  that\t the
\nplaintiff had  established its\tcase of\t passing off against
\nthe defendants.\t However the decree of dismissal of the suit
\nas passed by the Trial Court on the ground that the suit was
\nbarred by  0.2 R.2 Sub-rule (3) was confirmed by the learned
\nSingle Judge.  As no writ appeal lies against the said order
\nbefore the  Division Bench  of the  High Court the plaintiff
\npreferred Special  Leave Petition  under Article  136 of the
\nConstitution of\t India and as we have granted the leave, the
\npresent appeal fell for consideration before us.\n<\/p>\n
     The case of the plaintiff is that it is a proprietor of
\nthe trade  mark\t bearing  the  word  `DUCK  BACK’  which  is
\nregistered under  the Trade  and Merchandise Marks Act, 1000
\nand also  the owner  of the copyright in the artistic design
\nof the\tword `DUCK  BACK’ registered under the Copyright Act
\nand that the plaintiff has acquired a good reputation in the
\nIndian market for waterproof goods and rubberised waterproof
\nraincoats, It  is the  further pass of the plaintiff that it
\nmarkets its  products under  the registered trade mark `DUCK
\nBACK’ throughout  the country  and its\tproduct has obtained
\ngood reputation\t and popularity\t amongst  the  consumers  as
\n`DUCK BACK’ raincoats. The plaintiff further alleges that it
\ncame  to   know\t that\tdefendants  were  manufacturing\t and
\nmarketing similar  products under the trade mark `DUCK BACK’
\nwhich phonetically  and visually  resembled the\t plaintiff’s
\ntrade mark  resulting in  confusion  amongst  consumers\t and
\namounted to passing off of plaintiff’s goods as the goods of
\nthe defendants. The plaintiff was, therefore, advised to sue
\nthe defendants\tunder in the City Civil Court, Hyderabad for
\ninfringement of\t registered trade  mark `DUCK  BACK’ and  it
\nprayed, inter  alia, for permanent injunction on that basis.
\nThe learned  Trial Judge  in that  suit being  Original Suit
\nNo.238 of  1980 which  will be\tstyled as  the\tfirst  suit,
\npassed the  judgment and  degree dated\t6th April  1982\t and
\ndismissed  the\t same  on  the\tground\tthat  there  was  no
\ninfringement of\t plaintiff’s  trade  mark  goods  named\t and
\nstyled as  `DUCK BACK’ and, therefore, the reliefs as prayed
\nfor in\tthe plaint  were not  maintainable and\tcould not be
\ngranted.\n<\/p>\n
     It is the case of the plaintiff that it was misinformed
\nand ill-advised\t when  it  instituted  the  first  suit\t for
\ninjunction restraining\tthe defendants\tfrom  manufacturing,
\nselling, distributing\tand  sealing in\t any manner with the
\nwaterproof `DUCK  BACK’\t raincoats.  The  plaintiff  further
\nalleged that  even thereafter  in 1982 it came to its notice
\nthat  defendants   were\t carrying  on  the  infringement  of
\nplaintiff’s registered trade mark and were passing off their
\ngoods as  goods of  the plaintiff  and, therefore, they were
\nliable to  be restrained by way of permanent injunction from
\ninfringing the trade mark and  copyright of the plaintiff as
\nwell as\t from passing off their goods is the second suit and
\nfrom which  the present\t appeal\t arises\t was  registered  as
\nOriginal Suit  No.123 of  1982 before  the Chief Judge, City
\nCivil Court,  Hyderabad. It  is alleged\t in this second suit
\nthat by\t two letters both dated 30th April 1982 addressed to
\nthe defendants\tseparately the\tplaintiff  called  upon\t the
\ndefendants to desist from marketing, selling or offering for
\nsale the  said goods  in Class 25 with the mark `DACK BACK’.
\nIt was further averred in the plaint of the second suit that
\nby two\tletters both dated 25th May 1982 Mohammed Raftullah,
\nacting as  Advocate for\t both the defendants, baldly refuted
\nthe factual statements in the plaintiff’s said letters dated
\n30th April  1982 and  set up the defence of res judicata and
\nalso purported\tto challenge  deny the\tvery validity of the
\nregistration of\t the plaintiff’s  trade mark `DUCK BACK’. It
\nwas further  averred in\t the plaint  paragraph 19  that\t the
\ncause of  action arose\ton  or\tabout  6th  April  1982\t and
\ncontinues to arise de die et diem within the jurisdiction of
\nthe Trial  Court. In  pars 20  of the  second  suit  it\t was
\nfurther averred\t that the cause of action arose at Hyderabad
\nwhere the  defendants were  indulging in the illegal action,
\nsought to  be restrained  in the  suit and  also  where\t the
\ndefendants reside.  The prayers\t in the\t second suit read as
\nunder :\n<\/p>\n
     “Therefore, the  Hon’ble Court  may
\n     be pleased to grant :\n<\/p><\/blockquote>\n
     (a)      permanent\t      injunction
\n     restraining the defendants and each
\n     of\t  them,\t   whether   acting   by
\n     themselves or  by their servants or
\n     agents    from    infringing    the
\n     plaintiff’s registered  trade  mark
\n     No.4378 as\t OI 29.8.1942  being the
\n     word mark\tDUCKBACK by  the USE  IN
\n     COURSE of\ttrade the  mark DACKBACK
\n     or any  other near\t resemblance  to
\n     the plaintiff’s said trade mark.\n<\/p><\/blockquote>\n
     (b)    a\t permanent    injunction
\n     restraining the defendants and each
\n     of\t  them,\t   whether   acting   by
\n     themselves or  by their servants or
\n     agents  from  doing  the  following
\n     acts,  that   is  to  say,\t passing
\n     causing or assisting others to pass
\n     off   waterproof\t of   rubberised
\n     material, air  pillows, shoes,  hot
\n     water bags and other goods in Class
\n     25 not  being  OI\tthe  plaintiff’s
\n     manufacture     by\t    advertising,
\n     offering for  sale or  selling  any
\n     imitation of  the plaintiff’s  said
\n     goods by  attaching to  the same to
\n     the mark DACKBACK or any colourable
\n     imitation of  the\tplaintiff  trade
\n     mark DUCKBACK.\n<\/p><\/blockquote>\n
     (c)  an injunction\t restraining the
\n     defendants their servants or agents
\n     from  infringing\tthe  plaintiff’s
\n     copyright being NO. A-4548\/69 dated
\n     19.7.1969 in any way ;<\/p><\/blockquote>\n
     (d)  delivery up  for  construction
\n     all   blocks.    dies   and   other
\n     implements\t  for  the  printing  or
\n     uttering the mark DACKBACK with all
\n     papers  containing\t the  said  mark
\n     such  as  letter  beads.  bills  or
\n     advertisements material ;\n<\/p><\/blockquote>\n
     (e)  an enquiry  into  damages  and
\n     such  sum\t as  may  he  found  due
\n     thereon ;\n<\/p><\/blockquote>\n
     (f)  to grant  such other relief or
\n     reliefs as\t this Hon’ble  Court may
\n     deem  fit\t and   proper\tin   the
\n     circumstances of the case ;\n<\/p><\/blockquote>\n
     (g)  award costs of the suit.”<\/p><\/blockquote>\n
     The defence.  amongst others,  was that  they  had\t nor
\ninfringed the  plaintiff’s trade  mark and  in any  case the
\nsuit was  barred by  res judicata and by Order 2 Rule 2 sub-
\nrule (3),  CPC in  view of  the fact  that the\tearlier suit
\nbased on  the same  cause of action was already dismissed by
\nthe same  cause of action was already dismissed by the Trial
\nCourt on 6th April 1982. As noted earlier. the learned Trial
\nJudge dismissed the suit on the ground that it was barred by
\nOrder 2\t Rule 2\t sub-rule (3)  of CPC. So far as the learned
\nSingle Judge of the High Court was concerned, he agreed with
\nthe  plaintiff\t on  merits  and  cook\tthe  view  that\t the
\nwaterproof raincoats  manufactured by  the  first  defendant
\nbearing trade  mark `DACK  BACK’ phonetically  and  visually
\nresembled  the\twaterproof  raincoats  manufactured  by\t the
\nplaintiff bearing  trade mark  `DUCK BACK’.  Thus, on merits
\nthe learned Single Judge of the High Court held in favour of
\nthe plaintiff.\tHowever, he  persuaded himself\tto hold that
\nthe present suit, namely, the second suit is barred by Order
\n2 Rule\t2 sub-rule (3), CPC and, therefore the decree of the
\nTrial Court  dismissing\t the  second  suit  deserved  to  be
\nconfirmed. Of  course, the  learned Single Judge of the High
\nCourt also took the view in favour of the plaintiff that the
\nsuit was not barred by res judicata.\n<\/p>\n
     At the time of hearing of this appeal it became obvious
\nthat the fate of this litigation depends upon the finding on
\nthe moot  question whether  the second suit of the plaintiff
\nis barred  by Order  2 Rule 2 sub-rule (3), CPC as on merits
\nare High  Court has  agreed with the plaintiff and there are
\nno cross  objections or\t cross special\tLeave Petitions. The
\nlearned counsel\t for the respondent-defendants fairly stated
\nthat if\t this Court  takes the\tview that  the suit  is\t not
\nbarred as  held by  the High Court plaintiff’s suit would be
\nrequired to be decreed.\n<\/p>\n
     Under these  circumstances we  now proceed\t to  address
\nourselves to the sole moot question as to whether the second
\nsuit filed  by the  plaintiff was  barred by  Order 2 Rule 2
\nsub-rule  (3),\t CPS.  The  said  rule,\t its  sub-rules\t and
\nillustration below it read as under :\n<\/p>\n
     “2.  Suit\tto   include  the  whole
\n     claim.-(1) Every suit shall include
\n     the whole\tof the\tclaim which  the
\n     plaintiff is  entitled to\tmake  in
\n     respect of\t the cause  of action  ;<\/p><\/blockquote>\n
     portion of\t his claim  in order  to
\n     bring   the    suit   within    the
\n     jurisdiction of any Court.\n<\/p><\/blockquote>\n
     (2)  Relinquishment   of  part   of
\n     claim.-Whether a plaintiff omits to
\n     sue in respect of, or intentionally
\n     relinquishes, any\tportion\t of  his
\n     claim, he\tshall not afterwards sue
\n     in\t respect   of  the   portion  so
\n     omitted or relinquished.\n<\/p><\/blockquote>\n
     (3)  Omission to  sue  for\t one  of
\n     several reliefs.-A\t person entitled
\n     to more  than one relief in respect
\n     of the same cause of action may sue
\n     for all  or any of such reliefs, he
\n     the Court,\t to  sue  for  all  such
\n     reliefs, he  shall\t not  afterwards
\n     sue for any relief so omitted.<\/p><\/blockquote>\n
     Explanation.-For  the  purposes  of
\n     this  rule\t  an  obligation  and  a
\n     collateral\t  security    for    its
\n     performance and  successive  claims
\n     arising under  the same  obligation
\n     shall  be\tdeemed\trespectively  to
\n     constitute but one cause of action.
\n     Illustration –\n<\/p><\/blockquote>\n
     A lets  a house  to B  at a  yearly
\n     rent of  Rs.1,200. The rent for the
\n     whole of  the years  1905, 1907  is
\n     due and  unpaid, A\t sues B\t in 1908
\n     only for  the rent\t due for 1906. A
\n     shall not\tafterwards sue B for the
\n     rent due for 1905 or 1907.”<\/p><\/blockquote>\n
     A mere  look at the said provisions shows that once the
\nplaintiff comes\t to a  court of\t law for getting any redress
\nbasing his  case on  case on  an existing cause of action he
\nmust include  in his suit the whole claim pertaining to that
\ncause of  action. But  if he  gives up\ta part\tof the claim
\nbased on  the said  cause of  action  or  omits\t to  sue  in
\nconnection  with   the\tsame  then  he\tcannot\tsubsequently
\nresurrect the  said claim based on the same cause of action.
\nSo far\tas sub-rule (3) Rule 2 of Order 2, CPC is concerned,
\nbar of\twhich appealed\tto both the courts below, before the
\nsecond suit of the plaintiff can be held to be barred by the
\nsame it\t must be  shown that the second suit is based on the
\nsame cause of action on which the same in both the suits and
\nif in the earlier suit plaintiff had not sued for any of the
\nreliefs available  to it  on the  basis\t of  that  cause  of
\naction, the  reliefs which it had failed to press in service
\nin that\t suit cannot  be subsequently prayed for except with
\nthe leave  of the Court. It must, therefore, be shown by the
\ndefendants for\tsupporting their plea of bar of Order 2 Rule
\n2 sub-rule  (3) that the second suit of the plain tiff filed
\nin 1982\t is based  on the  dame cause of action on which its
\nearlier suit  of 1980  was based and that because it had not
\nprayed for  any relief\ton the\tground of passing off action
\nand  it\t had  not  obtained  leave  of\tthe  court  in\tthat
\nconnection, it\tcannot sue  for that  relief in\t the present
\nsecond suit.  So far  as this  plea  of\t the  defendants  id
\nconcerned there\t is a  threshold bar  against them for their
\nfailure to bring on record the pleadings of the earlier suit
\nwhich unfortunately has not been properly appreciated by the
\ncourts below. A Constitution Bench of this Court in the case
\nof Gurbux  Singh v.  Bhooralal<\/a> 1984  (7)  SCR  831  speaking
\nthrough Ayyangar,  J. in  this connection  has laid  down as
\nunder :\n<\/p>\n
     ” In  order that  a plea  of a  bar
\n     under 0.2\tr.2(3). Civil  Procedure
\n     Code should  succeed the  defendant
\n     who raises\t the plea  must make out
\n     (1) that  the second  suit\t was  in
\n     respect of the same cause of action
\n     as that  on which the previous suit
\n     was based.\t (2) that  in respect of
\n     that cause\t of action the plaintiff
\n     was  entitled   to\t more  than  one
\n     relief,   (3)   that   being   thus
\n     entitled  to   more  than\tone  the
\n     plaintiff, without\t leave\tobtained
\n     from the Court , omitted to sue for
\n     the relief\t for  which  the  second
\n     suit  had\tbeen  filed.  From  this
\n     analysis it  would be seen that the
\n     defendant would  have to  establish
\n     primarily and  to start  with,  the
\n     precise cause of action upon which,
\n     the previous  suit was  filed,  for
\n     unless there  is  identity\t between
\n     the cause\tof action  on which  the
\n     earlier suit  was filed and that on
\n     which the\tclaim in  the later suit
\n     is based  there would  be no  scope
\n     for the  application of the bar. No
\n     doubt. a  relief which is sought in
\n     a\tplaint\t could\t ordinarily   be
\n     traceable to  a particular cause of
\n     action but this might, by no means,
\n     be the  universal rule. As the plea
\n     is a  technical bar  it has  to  be
\n     established   satisfactorily    and
\n     cannot be\tpresumed merely on basis
\n     of inferential reasoning. It is for
\n     this reason that we consider that a
\n     plea of  a bar under 0.2 r.2, Civil
\n     Procedure Code  can be  established
\n     only  if  the  defendant  files  in
\n     evidence  the   pleadings\tin   the
\n     previous suit and thereby proves to
\n     the Court the identity of the cause
\n     of action\tin the\ttwo suits. It is
\n     common ground that the pleadings in
\n     C.S.28 of\t1950 were  not filed  by
\n     the appellant  in the  present suit
\n     as evidence  in support of his plea
\n     under  0.2.r.2,   Civil   Procedure
\n     Code.  The\t  learned  trial  Judge,
\n     however,  without\tthese  pleadings
\n     being on  the record  inferred what
\n     the casue\tof  action  should  have
\n     been  from\t the  reference\t to  the
\n     previous of deduction. At the stage
\n     of the  appeal the learned District
\n     Judge noticed  this lacuna\t in  the
\n     appellant, cage and pointed out, in
\n     out opinion  rightly, that\t without
\n     the plaint\t in  the  previous  suit
\n     being on  the record,  a plea  of a
\n     bar under\t0.2 r.2, Civil Procedure
\n     Code was not maintainable
\n     In view of the aforesaid authoritative pronouncement of
\nthe Constitution Bench of this Court the learned Trial Judge
\nas well\t as learned  Single Judge of the High Court ought to
\nhave held  that the  plea raised  by the  defendants in\t the
\npresent case  is barred\t at the\t threshold as the defendants
\nhad not\t produced on  the record  of  the  Trial  Court\t the
\npleadings in  the firs\tsuit. Thus  there is  a complete bar
\nagainst the  defendants from raising the bar of Order 2 Rule
\n2 sub-rule (3) against the plaintiff in the present case. In
\nthis connection,  we may refer to one submission made by the
\nlearned counsel\t for the  defendants which  appealed to\t the
\nlearned Dingle\tJudge of  the High  Court. He submitted that
\nthe averments  in the second suit of the plaintiff were that
\nthe first  suit was  misconceived and  proper relief was not
\nprayed for.  Therefore, it  can be  inferred that the second
\nsuit was  hit by the bar of Order 2 Rule 2 sub-rule (3), CPC
\nand he\tfurther submitted  that at least in counter filed in
\nreply to  the Special  Leave Petition  the  defendants\thave
\nproduced the  copy of  the plaint in the first suit. We fail
\nto appreciate  how this effort on the part of the defendants
\ncan be of any avail to them. Firstly, the Constitution Bench
\nof this\t Court in  Gurbux Singh’s  case (supra)\t has clearly
\nruled that  there cannot  be any  inference about the bar of
\nOrder 2\t Rule 2\t sub-rule (3),\tCPC which  may be culied out
\nfrom plaint in the second case and secondly once the plea of
\nbar of\tOrder 2 Rule 2 sub-rule (3) was not available to the
\ndefendants in  the suit\t in the\t absence of the pleadings in
\nthe earlier  suit being\t brought on  the record\t by them  in
\nsupport of their case before the Trial Court they had missed
\nthe bus\t especially when  even before  the  High  Court,  no
\nattempt was  made by the defendants to produce the pleadings
\nin the\tearlier suit by way of an application foe additional
\nevidence. Therefore,  it is  too late  in the  day  foe\t the
\ndefendants to contend that along with counter in the Special
\nLeave Petition\tbefore us  they had produced the copy of the
\nplaint in  the earlier\tsuit. In  the  light  of  the  clear
\npronouncement of  the Constitution  Bench  in  the  case  of
\nGurbux Singh  (supra), it  must be held that it was not open
\nto the\tdefendants to  raise the  contention of\t the bar  of
\nOrder 2\t Rule 2\t sub-rule (3),\tCPC in the present case and,
\ntherefore, the\tlearned Single\tJudge of  the High Court was
\nclearly in  error  in  non-suiting  the\t plaintiff  on\tthat
\nground.<\/p><\/blockquote>\n
     However, in order to give completeness to this judgment
\nand as the defendants were permitted to enter into the arens
\nof contest  on this  ground by the Trial Court as well as by
\nthe High  Court we  have thought  it fit  to  examine  their
\ncontention even on merits.\n<\/p>\n
     As seen  earlier, Order  2 Rule 2 sub-rule (3) requires
\nthat the  cause of  action in  the earlier  suit must be the
\nsame on\t which the subsequent suit is based and unless there
\nis identity of causes of action in both the suits the bar of
\nOrder 2\t Rule 2\t sub-rule (3)  will not\t get attracted.\t The
\nillustration below  the said  Rule  amply  brings  out\tthis
\nposition. A mere look at the said illustration shows that if
\na landlord  sues the  tenant in\t 1008 for  the rent due till
\nthat year  and omits to sue for rent for any of the previous
\nyears which  had then accrued due he cannot subsequently sue
\nthe tenant  for the  previous rent  due, claim for which was
\ngiven up  in the  suit, It is obvious that a subsequent suit
\nwould not  be barred  in case  of rent falling due after the
\nfirst suit,  say, for  the year\t 1909 or  1910 etc.  as that
\ndefault would give him a fresh cause of action. In the facts
\nof the\tpresent case  it becomes  obvious that\twhen earlier
\nsuit was  filed in  1980 the plaintiff had a cause of action
\nregarding the  alleged illegal\tuse of\this trade mark `DACK
\nBACK’ by  the defendants  and had also a grievance regarding
\nthe then  existing deceitful  action of\t the  defendants  in
\ntrying to  pass of  its goods  `DUCK BACK’.  Therefore,\t the
\ncause of  action foe the first suit of 1980 was based on the
\ninfringement of\t plaintiff’s trade  mark `DUCK\tBACK’ by the
\ndefendants till\t the date  of the  suit filed  in 1980.\t The
\ngrievance regarding  passing off of the defendants’ goods as
\nif they\t were plaintiff’s  goods was  also confined  to\t the
\nsituation prevailing  on the date of the earlier suit No.238
\nof 1980.  That suit  failed as the plaintiff had not claimed
\nproper\trelief.\t  Consequently\tfor   the  alleged  acts  of
\ninfringement  of  plaintiff’s  trade  mark  or\tthe  alleged
\npassing off  actions on\t the part of the defendants till the
\ndate of\t the earlier  suit no  subsequent grievance could be
\nventilated by  the plaintiff’s by filing a fresh suit. It is
\nalso pertinent\tto note\t that in  the earlier suit, that is,
\nthe first  suit the plaintiff had claimed Rs.25,000\/- by way
\nof damages  for the  alleged illegal  acts of the defendants
\nwhich were  brought on\tthe anvil  of action is concerned no
\nsubsequent suit\t lies as  it would  be barred  under Order 2
\nRule 2\tsub-rule (3). But we are concerned in the plaintiff.
\nIn the\tsecond suit,  namely, the present suit the grievance
\nis not\tbased on  any acts  of infringement  of passing\t off
\nalleged to have been committed by the defendants in 1980 but
\nplaintiff’s grievance  is regarding  the continuous  acts of
\ninfringement  of   its\ttrade\tmark  `DUCK  BACK’  and\t the
\ncontinuous passing  off action on the part of the defendants
\nsubsequent to  the filling of the earlier suit and which had
\ncontinued on  the date\tof the\tsecond\tsuit  of  1982.\t The
\nrelevant averments regarding the fresh cause of action which
\nhad accrued  to the  plaintiff after  the  disposal  of\t the
\nearlier first  suit are\t found in paragraphs 13 to 20 of the
\nplaint in the present second suit. They read as under :\n<\/p>\n
     “13. Thereafter the  plaintiff made
\n     enquiries and  came  to  learn  the
\n     following which  it believes  to be
\n     true :\n<\/p><\/blockquote>\n
     (a)  That\tthe  defendants\t neither
\n     manufacture nor  sell nor deal with
\n     goods in  class 25\t with  the  mark
\n     DUCKBACK.\n<\/p><\/blockquote>\n
     (b)   That\t  the\tDefendant   No.1
\n     manufactures  and\t the   defendant
\n     No.2  offers  for\tsale,  sells  or
\n     otherwise\tdeals\twith  waterproof
\n     articles rubberised or otherwise in
\n     class 25  applying thereto the mark
\n     DACKBAK, a word mark.\n<\/p><\/blockquote>\n
     (c)  That the  defendants are  well
\n     aware  of\t the   fact   that   the
\n     plaintiff’s goods\tin class 25 have
\n     been marketed  and sold  for  years
\n     under the\tplaintiff’s  trade  mark
\n     DUCKBACK.\n<\/p><\/blockquote>\n
     14.  The plaintiff\t avers that  the
\n     mark  DACKBACK   is   phonetically,
\n     visually and in size similar to the
\n     plaintiff’s said  registered  trade
\n     mark DUCKBACK.\n<\/p><\/blockquote>\n
     15.  The plaintiff\t avers that  the
\n     defendants by  their said acts have
\n     not only  infringed  the  statutory
\n     rights of\tthe plaintiff  not  only
\n     under  the\t Trade\tand  Merchandise
\n     Marks Act,\t 1958 but also under the
\n     Copy  Right   Act,\t 1957  by  their
\n     wrongful use  of the mark DUCKBACK,
\n     which is  confusing similar  to  or
\n     deceptively     resembling\t     the
\n     plaintiff’s  said\tmark  or  design
\n     DUCKBACK, but also have invaded the
\n     common law\t tight of  the plaintiff
\n     by passing\t off goods  in class 25,
\n     not being\tthose of the plaintiff’s
\n     manufacture   or\t sold\tby   the
\n     plaintiff.<\/p><\/blockquote>\n
     16.  By  the   two\t letters   dated
\n     20.4.1982\t  addressed    to    the
\n     defendants\t    separately,\t     the
\n     plaintiff\t  called     upon    the
\n     defendants\t   to\t  desist    from
\n     marketing, selling\t or offering for
\n     sale the  said goods  in  Class  25
\n     with the  mark DACKBACK. Xerox copy
\n     of\t the   said  two  letters  dated
\n     30.4.1982 are  filed  herewith  and
\n     marked `D’ and `E’.\n<\/p><\/blockquote>\n
     17.  By  two   letters  both  dated
\n     25.5.1982 from  Mohammed Raftullah,
\n     acting as\tAdvocate  for  both  the
\n     defendants,  baldly   refuted   the
\n     factual\tstatements     in    the
\n     plaintiff’s  said\t letters   dated
\n     30.4.1982 and set up the defence of
\n     RES JUDICATA  and also purported to
\n     challenge\t and   deny   the   very
\n     validity of the registration of the
\n     plaintiff’s trade\tmark DUCK  BACK.
\n     The plaintiff reserves its comments
\n     on\t the  said  letters  both  dated
\n     25.5.1982 are  filed  herewith  and
\n     marked `F’ and `G’ respectively.<\/p><\/blockquote>\n
     18.  The  Plaintiff   has\tsuffered
\n     loss   which   cannot   be\t  easily
\n     assessed and  would suffer\t further
\n     loss   and\t   damage   unless   the
\n     defendants\t were\trestrained  from
\n     further infringing\t the said  trade
\n     mark DUCKBACK  by the  use\t of  the
\n     mark DACKBACK  or\tany  other  near
\n     resemblance or colourable imitation
\n     of the plaintiff’s mark DUCKBACK or
\n     from passing  off in  any way goods
\n     in class  25 not being those of the
\n     plaintiff by  the use  of the  mark
\n     DACKBACK or  otherwise as the goods
\n     of the plaintiff.\n<\/p><\/blockquote>\n
     19.  The cause  of action\tarose on
\n     or about  6.4.1982 and continues to
\n     arise DE  DIE ET  DIEM  within  the
\n     jurisdiction of this Hon’ble Court.
\n     Thus the suit is within limitation.\n<\/p><\/blockquote>\n
     20.  The cause  of action\tarose at
\n     Hyderabad where  the defendants are
\n     indulging\tin  the\t illegal  action
\n     sought to be restrained in the suit
\n     and  also\t where\tthe   defendants
\n     reside. Thus, the Hon’ble Court has
\n     got jurisdiction.”<\/p><\/blockquote>\n
     The aforesaid averments in the plaint clearly show that
\nthe present suit is not based on the some cause of action on
\nwhich the  earlier suit\t was based.  The cause of action for
\nfilling this  present second  suit  is\tthe  continuous\t and
\nrecurring infringement\tof plaintiff’s\ttrade  mark  by\t the
\ndefendants continuously\t till  the  filing  of\tthe  present
\nsecond suit. We asked the learned counsel for the defendants
\nas to  whether pending\tthe suit  and at  present  also\t the
\ndefendants are\ttrading\t in  the  offending  goods,  namely,
\nbearing the  mark  `DACK  BACK’\t and  he  informed  us\tthat
\ndefendants even\t at present  are carrying  on this business.
\nTherefore, pending the second suit all throughout and during
\nthe  pendency  of  these  proceedings  the  defendants\thave
\ncarried\t on   the  business  of\t trading  in  the  commodity
\nwaterproof raincoats  `DACK BACK’.  It is  obvious that thus
\nthe alleged  infringement of  plaintiff’s trade\t mark  `DUCK
\nBACK’ and  the alleged passing off action on the part of the
\ndefendants in selling their goods by passing off their goods
\nas  if\t they  were  plaintiff’s  goods\t has  continued\t all
\nthroughout uninterrupted  and in  a recurring  manner. It is
\nobvious that  such infringement\t of a  registered trade mark
\ncarried on from time to time would give a recurring cause of
\naction to  the holder  of the trade mark to make a grievance
\nabout the  same and  similarly\tsuch  impugned\tpassing\t off
\nactions also  would give  a recurring cause of action to the
\nplaintiff to  make a  grievance about  the same\t and to seek
\nappropriate relief  from the  court. It\t is now well settled
\nthat an\t action foe passing off is a common law remedy being
\nan action  in substance\t of deceit  under the  Law of Torts.
\nWherever and  whenever fresh  deceitful act is committed the
\nperson deceived would naturally have a fresh cause of action
\nin his\tfavour. Thus every time when a person passes off his
\ngoods as those of another he commits the act of such deceit.
\nSimilarly whenever and wherever a person commits breach of a
\nregistered trade  mark of another he commits a recurring act
\nof breach  of infringement  of\tsuch  trade  mark  giving  a
\nrecurring and  fresh cause  of action  at each\ttime of such
\ninfringement to\t the party  aggrieved. It  is  difficult  to
\nagree how  in such  a case  when in  historical past earlier
\nsuit was  disposed of  as technically  not  maintainable  in
\nabsence of  proper reliers,  for all times to come in future
\ndefendant of  such a  suit should be armed with a licence to
\ngo on  committing fresh acts of infringement and passing off
\nwith impunity  without being  subjected to  any legal action
\nagainst such future acts. We posed a question to the learned
\ncounsel for  the defendants as to whether after the disposal
\nof the\tearlier suit  if the  defendants had suspended their
\nbusiness activities  and after\ta few  years had resumed the
\nsame and  had started  selling their  goods under  the trade
\nmark `DACK  BACK’ passing them off, the plaintiff could have
\nbeen prohibited\t and prevented\tby the bar of Order 2 Rule 2
\nsub-rule (3)  from filing  a fresh  suit in future when such
\nfuture infringement  or passing\t off took  place. He rightly
\nand fairly  stated that such a suit would not be barred. But
\nhis only grievance was that whatever was the infringement or
\npassing off  alleged against  the defendants  in  1980\thad,
\naccording to  the plaintiff,  continued\t uninterrupted\tand,
\ntherefor, in substance the cause of action in both the suits
\nwas identical.\tIt  is\tdifficult  to  agree.  In  cases  of
\ncontinuous causes  of action  or recurring  causes of action
\nbar of\tOrder 2\t Rule 2\t sub-rule (3)  cannot be invoked. In
\nthis connection\t it is\tprofitable to have a lock at Section
\n22 of  the Limitation  Act, 1963.  It lays down that `in the
\ncase of\t a continuing  tort, a\tfresh period  of  limitation
\nbegins to  run at  every moment of the time during which the
\nbeach or the tort, as the case may be, continues’. As act of
\npassing off  is an  act of  deceit and\ttort every time when
\nsuch tortious  act or  deceit is  committed by the defendant
\nthe plaintiff  gets a  fresh cause  of action to some to the
\ncourt by  appropriate proceedings. Similarly infringement of
\na registered  trade mark would also be a continuing wrong so
\nlong  as  infringement\tcontinues.  Therefore,\twhether\t the
\nearlier infringement has continuer or a new infringement has
\ntaken place  cause of  action for  filing a fresh suit would
\nobviously arise\t in favour of the plaintiff who is aggrieved
\nby such\t fresh infringements  of trade mark or fresh passing
\noff actions  alleged against the defendant. Consequently, in
\nour view  even on  merits the learned Trial Judge as well as
\nthe learned  Single Judge  were obviously in error in taking
\nthe view  that the  second suit\t of  the  plaintiff  in\t the
\npresent case was barred by Order 2 Rule 2 sub-rule (3), CPC.\n<\/p>\n
     Once this\tconclusion reached the result is obvious. As
\nthe learned  Single Judge  of the  High Court  has  held  on
\nmerits in  favour of  the plaintiff  and has  taken the view
\nthat the  action of the defendants is actionable and amounts
\nto  acts   of  passing\t off  as  the  waterproof  raincoats
\nmanufactured by\t the first  defendant bearing the trade mark
\n`BACK BACK’  are phonetically  and visually similar to those
\nof the plaintiff hearing the trade mark `DUCK BACK’, it must
\nbe  held  that\tthe  plaintiff\thad  made  put\ta  case\t for
\nactionable breach  of infringement of plaintiff’s trade mark
\nas well\t as actionable\tact of passing off by the defendants
\nof their  goods as  if\tthey  were  plaintiff’s\t goods\tand,
\ntherefore, the\tplaintiff’s suit  would be  required  to  be
\ndecreed.\n<\/p>\n
     In the  result the\t appeal suceeds\t and is allowed. The
\njudgment and  order of\tdismissal of the plaintiff’s suit as
\npassed by the Trial Court and as confirmed by the High Court
\nare set\t aside. Plaintiff’s  Original Suit No.123 of 1982 in
\nthe Court  of Chief  Judge, City  Civil Court,\tHyderabad is
\nordered to  be decreed\tas prayed for. Appeal is accordingly
\nallowed with costs all throughout.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India M\/S Bengal Waterproof Limited vs M\/S Bombay Waterproof … on 18 November, 1996 Author: S Majmudar. Bench: A.S. Anand, S.B. Majmudar PETITIONER: M\/S BENGAL WATERPROOF LIMITED Vs. RESPONDENT: M\/S BOMBAY WATERPROOF MANUFACTURINGCOMPANY & ANOTHER DATE OF JUDGMENT: 18\/11\/1996 BENCH: A.S. ANAND, S.B. MAJMUDAR ACT: HEADNOTE: JUDGMENT: J U D G M […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-108482","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nM\/S Bengal Waterproof Limited vs M\/S Bombay Waterproof ... on 18 November, 1996 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ms-bengal-waterproof-limited-vs-ms-bombay-waterproof-on-18-november-1996\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M\/S Bengal Waterproof Limited vs M\/S Bombay Waterproof ... on 18 November, 1996 - 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