The present application is filed by defendant Mrs. Pooja Sharma, seeking aside from the ex-parte judgment and decree dated 01.02.2019 and for seeking condonation of delay of 582 days in applying.
The suit was filed for permanent injunction restraining infringement. In the plaint, it was said that the plaintiffs’ predecessor had started a sweet business named “Hira Sweets” in 1912 and adopted the trademark in 1962. It was also said that plaintiffs No.1 was a registered proprietor under section 29/30/32/43 of Trademarks Act 1999 in 2016. The defendant was served with the summons in the suit and was given many opportunities but she stopped appearing before the court and her right to file the affidavit of admission of documents was closed.
The court relied on the decision of Satya Infrastructure Ltd. and others vs. Satya Infra and Estates Pvt. Ltd. On 01.02.2019, the defendant proceeded to be ex-parte. After considering the averments in the plaint the defendant had no real prospect of defending the claim. The suit was decreed in favor of the plaintiffs.
The defendant filed the present application on 19.10.2020 and claimed that she came to know about the ex-parte decree only on 18.07.2019 and that she went to the plaintiffs and asked for settlement. The plaintiffs assured the defendant of an amicable settlement. This took time till 2020 February. From March 2020 defendant’s shop remained closed due to financial hardship.
ARGUMENTS BEFORE THE COURT
The defendant argued that the reason for non-appearance before the Court was that the defendant’s counsel failed to appear before the court. The defendant further submitted the medical records of her son Mst. Sparsh Sharma underwent heart surgery on 04.07.2018. A further medical report of Smt. Savita Pandit, the defendant’s mother undergoing dialysis, and her death on 20.04.2019 was submitted. It was argued by the defendant that because of the aforesaid reason she could not appear before the court and also could not file the captioned application within time. The learned counsel placed reliance on decisions in Rafiq and Anr. vs. Munshilal and Anr.
Learned counsel for the plaintiffs has placed reliance on the decisions in Sudarshan Sareen v. National Small Industries Corporation Ltd. And Anr, Indian Sewing Machines Co Pvt. Ltd. v. Sansar Machine Ltd. and Another, M. Paul Babuta v. Union of India and Another & Baldev Raj Arora v. Modex International Securities Ltd.
The court observed the scope of an application under Order IX Rule 13 CPC is concerned; the court had seen whether the summons in the suit was duly served or not and/or whether the defendant was prevented by any “sufficient cause” from appearing when the suit was called for hearing. In the present case, the defendant was duly served with the summons in the suit and had appeared. Article 123 of The Limitation Act prescribes that the application for setting aside an ex-parte decree should be filed within thirty days of passing of the decree. Then the court affirmed the rule of sufficient cause from A. Murugesan v. Jamuna Rani. In the present case, the defendant had blamed her counsel for his non-appearance which resulted in the passing of the decree but then the court had done so for the benefit of the case.
As far as the delay of 582 days in applying was concerned, the defendant has sought to explain the same by claiming that some settlement talks were going on between the parties. The defendant had also relied upon certain medical documents of the son and mother of the defendant’s proprietor. Also, learned counsel for the plaintiffs strongly denied the claim of any settlement talks. The defendant failed to put any supporting document in this regard. And the medical report did not have any justification for the delay of 582 days in applying.
The Court observed that the defendant had failed to show any sufficient cause for its absence in the Court on given dates. The defendant had also failed to satisfactorily explain the delay of 582 days in filing the captioned application. The medical reports given by the defendant were only an eye-wash. Accordingly, this court was not inclined to accept the explanation provided by the defendant. Consequently, the captioned applications were dismissed.
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