- (1.) Heard Sri Ravi Kant, learned Senior Counsel assisted by Sri Tarun Agrawal, learned counsel for the revisionist and Sri Abhinava Kumar Srivastava, learned counsel for the both opposite parties. Since both the respondents are represented, with the consent of learned counsel for both the parties, this revision is being decided finally today itself. This revision is directed against the order dated 27.03.2013 passed in Original Suit No. 24 of 2010 (M/s. Rohit Surfactants (P) Ltd. v. M/s. Kanodia Salt Company Private Ltd.) by the Additional District Judge, Court No. 16, Kanpur Nagar whereby the Court by the impugned order has directed that the application filed by the plaintiff being Paper No. 408 Ga would be decided after the application of the defendant Paper No. 411 Ga under Order VII Rule 11 of the Code of Civil Procedure has been considered and decided.
(2.) Learned counsel for the revisionist has submitted that the impugned order is illegal and is violative of the provisions of Section 124(1)(b)(ii) of the Trade Marks Act, 1999. According to him when there is a plea regarding invalidity of the registration of either the plaintiff's or the defendant's trade mark which is prima facie tenable the court has to raise an issue regarding the same and adjourn the case for a period of three months from the date of framing of the issue in order to enable the party concerned to apply to the Appellate Board for rectification of the register. He states that when the application by the plaintiff was made under Section 124 of the Trade Marks Act the court below could not direct for consideration of the defendant's application under Order VII Rule 11 of the Code of Civil Procedure particularly when a similar application prior to the stage of framing issues made by the defendant had been rejected by the order dated 02.07.2010.
(3.) Learned counsel for the opposite parties has submitted that the order impugned does not suffer from any illegality inasmuch as if the suit is not maintainable and such an order is passed on the application made by the defendant under Order VII Rule 11 of the Code of Civil Procedure there would be no occasion for consideration of the application of the plaintiff made under Section 124 of the Trade Marks Act. He has further submitted that the earlier order dated 02.07.2010 passed on the defendant's application under Order VII Rule 11 of the Code of Civil Procedure clearly provided that such application could not be considered because issues had not been framed and evidence had not been led between the parties. He states that under such circumstance, now when the issue has been framed, evidence has been led the application of the defendant under Order VII Rule 11 of the Code of Civil Procedure has rightly been directed to be considered before the application made by the plaintiff under Section 124 of the Trade Marks Act.;