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Judgment
S.L. Bhayana, J.—This application has been moved by the applicant, defendant No. 2 in the CS (OS) No. 1251/07, thereby seeking rejection of the plaint under Order VII Rule 11 of CPC as being barred by or opposed to law.
To support this application, applicant has submitted that, Ms. Gopika Pant has acted in combined role as to constituted attorney pursuant to the power of attorney and as an advocate in same cause which is opposed to law. It is further asserted by the applicants that DSK legal, Law firm appointed by the constituted attorney Ms. Gopika Pant is also a partner of the said law firm and has been acting as advocate of the plaintiff as well and thus performing combined function of advocate as well as the constituted attorney of the suitor which is opposed to the mandate of law, as deposition made by the said constituted attorney on behalf of the non-resident clients is not in conformity with law as it amounts to conflict of duty and interest, and would result in miscarriage of justice. He has further prayed that in view of the above mentioned irregularity, plaint is liable to be rejected learned Counsel for the applicant also has relied upon the judgment of Bombay High Court in Oil and Natural Gas Commission Vs. Offshore Enterprises Inc.,
The only short question which arises for consideration is whether the issue of dual capacity as raised by the applicants vitiates the whole proceedings or not?
Learned Counsel for the plaintiff has vehemently opposed the present application and submitted that issue of dual capacity as raised by the defendant No. 2 is totally misplaced on account of the fact that constituted attorney, namely, Ms. Gopika Pant had never appeared before this Court as representing the plaintiff as an advocate and the advocates who had appeared to attend the matter before the Court were neither partners nor employees of the law firm in which Ms. Gopika Pant is a partner and all the advocates who have appeared before the Court are all acting as advocates in their own individual capacity.
I have heard the objections and explanations of both the parties. A few facts leading to the present dispute as disclosed in the present application, in brief, are that plaintiff/non- applicants had filed a suit bearing No. 1251/07 for infringement of trade mark bearing registration No. 74905 for three ring device of writing instrument registration No. 1152812 for word mark ''STARWALKER'' and for passing off in relation to the plaintiffs trademark. It is evident from the record that this Court vide its interim order dated 13/7/07 and its final order dated 19/05/08 restrained the defendants/applicants from using the three ring device or device which is deceptively similar to the three ring device of the plaintiff''s writing instrument. Defendants have filed an appeal against the final order, which was also dismissed vide order dated 15/01/09. Defendants then filed a review petition against the said order which was also dismissed by court vide order dated 20/03/09 having found no merit.
To support his submission learned Counsel for the non-applicants has relied upon the following judgments:
1) Columbia Pictures Industries, Inc. and Others Vs. Siti Cable Network Ltd.,
2) Mother Dairy fruit& Vegetable pvt Ltd v. Gujarat Co-operative milk 2006(32) PTC 593 (Del);
3) Microsoft Corporations v. Mr G.V. Rao CS(OS) 1168/05 decided on 15/01/09;
4) United Bank of India Vs. Naresh Kumar and others,
5) Mars Vs. Mares Confectioneries P. Ltd., and
6) Uday Shankar Triyar v. Ram Kalewar Prasad Singh and Anr. (2006) 1 SCC 77.
After considering all the facts and submissions made by the counsel of the parties, I am of the view that the issue of dual capacity as raised by the applicants is mere a technical irregularity, which does not affect the root cause of the issue as raised in the original suit, it would not cause any prejudice to the non-applicants if allowed to get cured. There is no legal bar to an advocate being appointed as a constituted attorney by a party for the purpose of a case. Moreover there is no suggestion of there being any mala fide.
It is relevant to take note of few precedents on this issue. In Uday Shankar''s case (supra), the Court held as under:
Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a hand-maiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well recognized exceptions to this principle are:
i) where the Statute prescribing the procedure, also prescribes specifically the consequence of non-compliance.
ii) where the procedural defect is not rectified even after it is pointed out and due opportunity is given for rectifying it;
iii) where the non-compliance or violation is proved to be deliberate or mischievous;
iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court.
v) in case of Memorandum of Appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant;
Similarly in Union Bank of India''s case (supra), the Court held:
In cases like the present where suits are instituted or defended on behalf of a public corporation, public interest should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the Courts, under the CPC, to ensure that injustice is not done to any party who has a just case as for as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable.
From the above discussion, it follows that plaintiff has already established its substantial right in the trademark. Balance of convenience is also in favour of the non- applicants. Substantial rights should not be allowed to be stultify and scuttle on account of a procedural irregularity which is curable. This technical irregularity is not fatal to the proceedings and if is allowed it would cause further delay in the matter.
The application is without any merit and the same is, therefore, dismissed.