S. J. Kathawalla, J. - (1.) The Petitioner (Original Plaintiff) has filed the above Suit inter alia for an order of perpetual injunction restraining the Respondent (Original Defendant) from infringing the registered trademarks bearing Nos. 436744 and/or 1521743 both in Class 32. Along with the Plaint, the Plaintiff filed the above Petition No. 885 of 2011 seeking leave of this Court under Clause XIV of the Letters Patent, Bombay, to combine the cause of action for passing off with cause of action for infringement of trademark. Prayer clause (a) of the above Petition is reproduced herein below: (a) That leave be granted to the Petitioner under Clause XIV of the Letters Patent of this Court to join together the cause of action for passing off with the cause of action of infringement of trademark and for a combined trial of the said issues in the above Suit against the Respondents". For the sake of convenience, the Petitioner shall hereinafter be referred to as "the Plaintiff" and the Respondent as "the Defendant".
(2.) The Defendant took a preliminary objection that this Court has no jurisdiction to try the present Suit and the Suit is also barred by the Law of Limitation. In view thereof, on 13th March, 2013, this Court framed the following two issues under Section 9A of the Code of Civil Procedure, 1908: "(a) Whether this Court has jurisdiction to try and entertain the above Suit (b) Whether the Suit is barred by the Law of Limitation - The Plaintiff was directed to file its affidavit of evidence, affidavit of documents and compilation of documents, which they did. However, the Learned Senior Advocate appearing for the Defendant contended that the affidavit of documents so directed to be filed by this Court by the Plaintiff must make a full disclosure on oath of all the documents which are found in the Plaintiff's possession or power relating to any matter in question in the Suit. On the other hand, the Plaintiff contended that such disclosure be limited to the documents only in relation to the preliminary issues viz. jurisdiction and limitation. The Learned Advocates for the parties were therefore heard in the matter and by a detailed order dated 22nd May, 2013, this Court rejected the contention of the Defendant by inter alia holding as follows: " 15. It is difficult to see how the Defendant can claim to be prejudiced or impaired in his right to seek complete candour or full and complete disclosure of documents, if such discovery is not ordered at this stage. All documents relevant to the preliminary issue will have to be discovered, and evidence led at this stage. If the trial has to proceed to the next stage, the Plaintiff will have to discover, and lead evidence of all other documents which are relevant to the merits of the case, and the Defendant will definitely have the advantage of having an affidavit of such documents before the trial of the other issues, after they are framed."
(3.) Thereafter the Learned Senior Advocate appearing for the Defendant cross examined the Plaintiff's witness and the matter was placed for arguments on 7th October, 2013. At the time of oral arguments, the Learned Senior Advocate appearing for the Defendant submitted that he is not pressing the issue of limitation. The Learned Senior Advocate for the Defendant while dealing with the issue of jurisdiction of this Court to try and entertain this Suit so far as it relates to infringement of trade marks, which was framed by the Court under Section 9A of the Code of Civil Procedure, 1908, conceded that this Court has jurisdiction to try and entertain the Suit for infringement of the Plaintiff's registered trade marks. However, he submitted that this Court does not have jurisdiction to try the issue of passing off.;