Brief Note on Issue of the case

1. Maintainability of Appeal under Order 43 Rule 1 CPC against rejection application under O 7 R 11 CPC.

Case Title: Bhushan Oil and Fats Pvt. Ltd. Vs Mother Diary Fruit and Vegetables Pvt. Ltd.
Judgement date:12.01.2023
Neutral Citation No.2023/DHC/000363
Commercial Appeal No. FAO(OS) (COMM) 3/2023
Name of Court: High Court of Delhi
Name of Hon'ble Justice: Manmohan and Saurabh Banerjee, JJ

The Parties in the Appeal:
Appellant is the Plaintiff while Respondent is the Defendant in the subject matter Suit seeking relief of Infringement of Trademark and passing off.

The Suit:
The Appellant filed the subject matter Suit against the Respondent seeking the relief of inter alia subject matter Suit seeking relief of Infringement of Trademark and passing off.

The Judgement Assailed:
The Hon'ble Singh Judge, vide its Judgement dated 22.09.2022, was pleased to dismiss the Application of the Respondent under Order 7 Rule 11 CPC.

The Provisions invoked for filing of the Appeal:
The subject matter Appeal was filed by the Appellant under the provisions of Order 43 Rule 1 CPC.

The Contention of Respondent in Appeal:

1. As per the provisions of O 43 R 1 CPC, only those orders can be assailed which were specifically mentioned in O 43 R 1 CPC.
2. Order 43 Rule 1 CPC does not included the provision for filing an appeal from an order of refusal of an application under O 7 R 11 CPC.
3. Hence the Appeal was not maintainable.

The Judgement of the Hon'ble Division Bench:
The Hon'ble Division Bench was pleased to dismiss the Appeal, being not maintainable.

Brief Note on the finding of the Hon'ble Division Bench:

1. Only those orders can be assailed under the provisions of Order 43 Rule 1 CPC which are mentioned in this provision.
2. Order 43 Rule 1 CPC provides for remedy of filing Appeal against allowance of application under Order 7 Rule 10 CPC.
3. Appeal against order of rejection of Defendant's application under Order 7 Rule 11 CPC does not dound mentioned in the provisions of Order 43 Rule 1 CPC.
4. It is well settled preposition of law that all parties to a suit, including the parties before this Court, are bound by the Statute.
5. There is no any provision for filing of Appeal under Order 43 Rule 1 CPC against rejection of application application under Order 7 Rule 11 CPC.
6. The Hon'ble Division Bench relied upon the judgement of the Apex Court in Kandla Export Corporation Vs OCI Corporation and Anr. (2018) 14 SCC 715 and of a Co-ordinate Bench of this Court in Odean Builders (P) Ltd. Versus NBCC(India) Ltd. 2021 SCC OnLine Del 4390 where in similar issues were discussed and finding were given that only those Orders can be Appealed under the Provisions of Order 43 Rule 1 CPC, which are mentioned in therein.
7. Relying upon the adore mentioned Judgement as settled by the Hon'ble Supreme Court of India, the Hon'ble Division Bench, was pleased to dismiss the adore mentioned Appeal being not maintainable in the eyes of law.

Disclaimer:
This information is being shared in the public interest. It should not be treated as substitute for legal advise as there may be possibility of error in perception, presentation and interpretation of facts and law involved therein

Written By: Ajay Amitabh Suman, IPR Advocate - Hon'ble High Court of Delhi.
Email: [email protected], Ph no: 9990389539