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Judgment
The Court : The appeal arises out of a judgment and decree dated January 14, 2015 by which the appellant's suit for infringement and passing off has been dismissed.
The suit was dismissed primarily on the ground that the institution of the suit was bad in that the plaint had been improperly verified. Though there are a couple of paragraphs towards the end of the impugned judgment to the effect that the plaintiff did not lead any evidence to establish its claim and that the other issues ought to be answered against the plaintiff, it does not appear that the judgment dwells on any aspect other than Exhibits 'A' and 'B' and as to whether the suit was appropriately instituted by or on behalf of the plaintiff by a person authorised so to do.
The appellant says that the cause of action continues and the defendants continue to act with impunity. Without going into the technicalities and the effect of the perceived filing of the suit by a person who may not have been duly authorised by the plaintiff, the plaintiff seeks leave to withdraw the suit with liberty to file afresh.
The defendants are represented and say that after so many years such liberty should not be granted. According to the defendants, it was open to the plaintiff at the initial stage and when the defect was pointed out to withdraw the suit; but the mala fide continuation of a defective suit for such a long period would disentitle the plaintiff from obtaining leave from the appellate Court at this stage.
There is no doubt that the suit has been dismissed and it is not a matter of the plaint being rejected on the ground of any technicality or defect. The dismissal of a suit means that the cause of action, if any, merges with the order of dismissal and can no longer be espoused unless the decree for dismissal of the suit is overturned. At the same time, it is apparent that the merits of the matter were not addressed by the trial court upon the trial court finding that the suit was defective and that no person authorised by the plaintiff company had verified the plaint or had taken responsibility for the institution of the suit. Though there are stray sentences to the effect that the claim could not be established, but such findings are bereft of reasons and cannot stand on their own.
Since the judgment and decree impugned may really be regarded as the rejection of the plaint rather than the dismissal of suit and since in appeal the entire lis is revived, liberty is given to the plaintiff to withdraw the suit with leave to file afresh on the self-same cause of action. However, such liberty comes with the caveat that no interim or ad interim order may be obtained by the plaintiff in any subsequent action pertaining to the self-same cause of action without previous notice to the defendants herein.
APD No. 43 of 2019 along with GA No.2416 of 2019 are disposed of by modifying the impugned judgment and decree accordingly.
There will be no order as to costs.
Urgent certified photocopies of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.