These two civil revision petitions are at the instance of the plaintiff in O.S.No.3 of 2002 on the file of the Principal District Judge, Puducherry and the challenge is to the order passed by the learned trial Judge allowing the applications filed by respondents 1 to 4 invoking Order 11 Rules 1 and 12 of the Code of Civil Procedure.
2. The suit in O.S.No.3 of 2002 was filed by the revision petitioner before the District Judge, Puducherry praying for a judgment and decree to restrain the respondents, their agents, and men from committing piracy of their registered design bearing No.186574 in respect of the shape and configuration of the pens by manufacturing, selling, distributing BITCO FINGER pens which is an imitation of the get up and trade dress of plaintiff's 045 SMARTGRIP pens in any manner whatsoever and for other consequential reliefs.
3. In the plaint in O.S.No.3 of 2002, the revision petitioner as plaintiff contended thus:-
(a) The plaintiff has a technical know-how agreement with Reynolds formerly known as M/s. Reynolds S.A., France. The plaintiff is an exclusive licensee in India to use the trademark "REYNOLDS". The trademark enjoys an extensive international reputation, which has spilled over into India. The plaintiff has introduced in September, 2001 a new model "045 RENOLDS SMARTGRIP" and the said pen is unique in its design, shape and configuration.
(b) The plaintiff has also applied for and obtained design registration for the entire pen as per registration No.186574. By virtue of the distinctive design, shape and configuration the plaintiff's "045 RENOLDS SMARTGRIP" has acquired enormous reputation within a short span of time. The trade and public have come to associate the distinctively shaped "045 RENOLDS SMART GRIP" pens with the pens manufactured and sold by the plaintiff.
(c) The plaintiff became aware in May, 2002 about the similarly shaped and designed pens being sold at Puducherry. Necessary enquiry was conducted and it was made known that the first defendant is the distributor selling on a commercial scale within the city of Puducherry, pens manufactured by the fifth defendant. Defendants 2 to 4 are the partners of the fifth defendant concern. The investigation further revealed that the defendants pen are sold commercially on an extensive scale in the city of Puducherry.
(d) The defendants have adopted an identical design as that of the plaintiff in respect of their pen "BITCO FINGER". The only point of differentiation is that they have used their own name in respect of the pens but have copied every other feature of the plaintiff's "045 RENOLDS SMART GRI P" in its entirety. Since the illegal activities of the defendants are causing and are likely to cause irreparable damage to the sales, reputation and goodwill of the plaintiff, the defendants were called upon to cease and desist from manufacturing, selling, distributing, advertising any pen, which is an imitation of plaintiff's "045 RENOLDS SMART GRIP" with design registration No.186574. However the defendants failed to comply with the requisitions which made the plaintiff to file the suit for permanent injunction.
4. The suit was contested by the respondents, being defendants. In the written statement filed by the fifth respondent, being first defendant, it was their contention that they were not the distributors of pens on a commercial scale in the City of Puducherry. According to the first defendant their business is in buying and selling books, guides and other stationery items. In short, the first defendant specifically denied that they were engaged as distributors of defendants 1 to 4 at any point of time.
5. The fourth respondent/fifth defendant filed a detailed written statement wherein they have denied the entire allegations and averments as contained in the plaint. According to the fifth defendant they are not manufacturing pens including the impugned design pens and they were only engaged in marketing pens. The fifth defendant specifically denied that they have sold pens at any point of time which are similar to that of the plaintiff. They have been marketing their pens displaying prominently the trade name "BITCO", which is not in any way similar to that of the plaintiff. The design and the get up are all totally different . They have been doing this business for the past twenty five years and they do not have any retail commercial sale as they were doing only wholesale trade. The fifth defendant also denied that the first defendant was their distributor at Puducherry, as according to them there was no business relation between them . In the written statement as well as in the rejoinder filed, the fifth defendant also indicated that the suit was a collusive one between the petitioner and the first defendant.
6. The petitioner has also filed an application in I.A.No.19 of 2002 for issuance of an Advocate Commission ex parte along with the suit. The said application was allowed and an Advocate Commissioner was appointed. The Advocate Commissioner inspected the premises of the fifth respondent and seized 55 pouches of BITCO finger ball pens, each pouch containing ten pieces and those seized pens were handed over to the fifth respondent for safe custody.
7. While the matters stood thus, respondents 1 to 4 filed two applications before the trial Court.
8. Respondents 1 to 4 as per their applications in I.A.Nos.24 and 25 of 2002 prayed for an order to deliver interrogatories to the revision petitioner and the fifth respondent and to call upon them to produce documents to show their nexus with the fifth respondent.
9. In the affidavit filed in support of the applications in I.A.Nos.24 and 25 of 2002, it was the contention of respondents 1 to 4 that the fifth respondent was not their dealer at Puducherry as stated in the plaint in O.S.No.3 of 2002. Therefore it was their prayer to direct the revision petitioner and the fifth respondent to produce documents showing the nexus or business relationship between respondents 1 to 4 and the fifth respondent as the entire claim in the plaint was based on such business relationship.
10. The applications in I.A.Nos.24 and 25 of 2002 were opposed by the revision petitioner by filing counter. The revision petitioner while opposing the interrogatories filed under Order 11 Rules 1 and 12 of the Code of Civil Procedure contended that the applications were too premature and questions which have to be put to a witness examined on their side cannot be asked by way of interrogatories. Similarly the direction to produce the documents were also opposed on the ground that the revision petitioner has no connection with those documents as the transaction was purely between respondents 1 to 4 and the fifth respondent.
11. The learned principal District Judge, Puducherry considered both the applications together and held that receiving documents found mentioned in the application was necessary as it would disclose and reveal the business transaction between the parties. Accordingly the applications were allowed. Aggrieved by the said order, the unsuccessful first respondent is before this court.
12. The learned counsel for the revision petitioner contended that the learned District Judge has passed an order very mechanically without considering the vital issues involved in the matter. According to the learned counsel, the revision petitioner has no relationship or nexus with the fifth respondent and as such there was no question of producing any document as called upon by respondents 1 to 4. It was his further contention that the interrogatories sought for by respondents 1 to 4 are mischievous and intended to embarrass the revision petitioner during the trial of the case.
13. The learned counsel appearing on behalf of respondents 1 to 4 justified the order passed by the learned trial Judge as according to him answering the interrogatories would shorten the litigation and it would help the court to dispose of the matter in a more expeditious manner.
INTERROGATORIES:-
14. Respondents 1 to 4 in their application in I.A.No.25 of 2002 sought to serve the interrogatories with the following questions:-
"1. How under what circumstances the plaintiff became aware that the fifth defendants BITCO FINGER pens are sold in Pondicherry?
2. What investigations were done by whom and with whom what were the results of investigations of the plaintiff/1st respondent?
3. What investigations revealed that the fifth defendant pens are sold commercially and in extensive scale by the 1st defendant with the City of Pondicherry?
4. What was the duration of period investigation of the 1st defendant and what was the scale of sales of the 1st defendant?
5. What is the scale and volume of sale of Vijayalakshmi Book Centre of (1) Plaintiff's pen & (2) 5th defendant's pen for period of 2001-2002."
DISCUSSION:-
15. By way of application in I.A.No.24 of 2002 respondents 1 to 4 wanted the revision petitioner and the fifth respondent to produce documents to show their nexus of distributorship with the fifth respondent.
16. The learned Principal District Judge allowed the applications without making an attempt to consider as to whether the service of the interrogatories were absolutely necessary for the purpose of disposal of the case. Similarly there was no attempt made to ascertain as to whether it would be possible for the revision petitioner and the fifth respondent to produce any such document as called for by the respondents 1 to 4.
17. The jurisdiction to permit a party to a suit to deliver interrogatories in writing for the examination of the opposite party is conferred on the Court under Order 11 Rule 1 of the Code of Civil Procedure. Similarly Rule 12 of Order 11 permits a party to apply before the Court for an order directing any other party to the suit to make discovery on oath of the documents which are or have been in his possession or power, relating to any other matter in question.
18. While considering an application under Rules 1 and 12 of Order 11, the Court was expected to look into the effect and significance of the interrogatories sought to be delivered as well as the relevancy of the documents sought to be summoned. The purpose of discovery by interrogatories was to enable a party to the proceeding to obtain certain vital information from the opposite party so as to use such information to advance his case. Therefore the interrogatories should be confined to the facts of the case. The opposite party is entitled to submit his objection to the interrogatories on the ground that it was not relevant for the purpose of deciding the case as well as on the ground that there was no bonafides in coming with such an application.
19. The discretion to permit a party to serve the interrogatories has to be exercised on the basis of well established legal principles. The Court has to consider the nature of the claim in the suit, the necessity shown by the party to invoke the provisions of Order 11 of Rules 1 and 12 and other relevant factors for the purpose of exercising the discretion. The delivery of interrogatories cannot be made to cause prejudice to the opposite party. It is also not a short cut method to prove the cases of the party, who intends to deliver interrogatories. Therefore the trial court has to consider the matter judiciously and to arrive at a conclusion as to whether the applicant should be permitted to deliver interrogatories or to call upon the opposite party to produce the documents as sought for by him.
20. I have perused the order passed by the learned District Judge. It is found that no attempt was made by the learned Judge to ascertain the effect and the significance of the interrogatories sought to be delivered. There was nothing indicated in the order as to how it would help respondents 1 to 4 to prove their case. Similarly no attempt was made by the learned trial Judge to come to a conclusion as to whether it would be possible for the revision petitioner to produce the documents sought for by respondents1 to 4.
21. The learned trial Judge is bound to consider the implications of the interrogatories in the light of the pleadings. The entire case of the revision petitioner rests on the basis of their enquiry conducted in the matter which resulted in getting the alleged information about the imitations of their branded pen both in design and in shape. Therefore before granting permission to serve the interrogatories, the trial Court was expected to look into the questions for the purpose of arriving at a conclusion as to whether the revision petitioner should be compelled to disclose their nature of evidence in the suit. It is trite that a party is not entitled to serve interrogatories with a view to collect materials which would constitute the evidence of the opposite party. This provision is not a short cut for a party to win the case. The order of the trial Judge does not disclose that the basic requirements for permitting service of interrogatories were considered in the matter.
22. The suit is also ripe for trial and in such circumstances, whether it was necessary to deliver the interrogatories with the questions as contained in the application in I.A.No.25 of 2002 was also not considered by the learned trial Judge. Therefore I am of the view that the entire issue need to be considered by the learned trial Judge afresh.
23. In the result, the order dated 18.7.2008 in I.A.Nos.24 and 25 of 2002 are set aside and the mater is remitted to the learned trial Judge for fresh consideration. The civil revision petitions are allowed accordingly. Consequently, the connected Mps are closed. No costs.
Tr/ To The Principal District Judge, Puducherry.