Bharat Chemical Industries vs Indian Harbs Research and Supply Company and Others

Deoki Nandan, J.—This is a First Appeal from an order refusing to set aside an exparte decree passed against the three Defendants, namely, (1) M/s. Bharat Chemical Industries Pirdamaria (Post Office Patna City, Bihar), through its Proprietor Smt. Pushpa Jaiswal, (2) Smt. Pushpa Jaiswal, Proprietor M/s. Bharat Chemical Industries, Pirdamaria (Post Office Patna City, Bihar); and (3) Sri Tara Prasad Jaiswal, Manager Bharat Chemical Industries, Pirdamaria (Post Office Patna City, Bihar). It was a decree for prohibitory and mandatory injunction both, in a suit for remedy against an alleged infringement of trade mark. The application for setting aside of the exparte decree was made by one M. K. Jaiswal, claiming himself to be the Proprietor of M/s. Bharat Chemical Industries. The trial court has, in refusing the application, observed that Defendant No. 3, namely, Tara Prasad Jaiswal is the father of M.K. Jaiswal who appeared in the case on two dates, viz., 19th April, 1975 and 16th May, 1975, and sought time to file a written statement, and that his counsel is also the counsel for the applicant M. K. Jaiswal. The applicant claimed that the business belonged to him having inherited it from his uncle Dhruv Narain Jaiswal, who had no son and had died in December, 1972. The lower appellate court found that the applicant M. K. Jaiswal was not the proprietor of the business carried on in the firm name of M/s. Bharat Chemical Industries, and he had nothing to do with it, and further that he had made the application at the instance of Defendants Nos. 2 and 3.

Be that as it may, the fact remains that the summons of the suit could not be said to have been served on M. K. Jaiswal, the applicant, who claimed himself to be the proprietor of the business carried on in the firm name of M/s. Bharat Chemical Industries. In that view of the matter M. K. Jaiswal had no locus-standi to move the application for setting aside of the exparte decree. The question whether he was the Proprietor of the business or that the business was owned by Smt. Puspha Jaiswal or managed by Tara Prasad Jaiswal was outside the scope of the proceedings under Order 9 Rule 13 of the Code of Civil Procedure. This question was not raised in the suit and the decree was passed exparte against the three Defendants described as above. The question whether the business was in fact owned by Smt. Pushpa Jaiswal or managed by Tara Prasad Jaiswal could properly be raised by M. K. Jaiswal in the execution proceedings if the decree was sought to be executed against him and, may be, if he feels so aggrieved by the decree, he could have filed a suit for its cancellation, but surely the application moved by him for setting aside of the decree did not lie. The appeal fails and is dismissed, but in the circumstances there will be no order as to costs.