- (1.) This application under Article 227 of the Constitution of India is directed against the Order No. 132 dated 11-2-2011 passed by the learned Judge, 13th Bench, City Civil Court, Calcutta in Misc. Case No. 572 of 2004 whereby the learned Judge turned down the prayer of the petitioner/defendants for dismissing the application under Order 39, Rule 2-A of the Civil Procedure Code filed by the plaintiff/opposite parties herein.
(2.) The factual matrix leading to the instant dispute is as follows: (a). On or from March 1997 the petitioner/ defendants claimed to be the proprietor/ owner and the lawful user of domain name "NAUKRIE.COM." (b). On or about September 2002, the plaintiff/opposite party No. 1 registered a domain name "NAUKRIE.COM" in his name. (c). Being aggrieved by such registration of a deceptively similar mark in favour of the plaintiff/opposite party No. 1, the petitioner/defendants filed a civil suit being C.S. (O.S.) No. 2169 of 2003 against the plaintiff/opposite party No. 1 before the Delhi High Court for declaration and permanent injunction. (d). On 18th December, 2003, the Delhi High Court passed an ad interim order of injunction restraining the plaintiff/opposite party No.1 from using the domain name "NAUKRIE.COM". (e). On 23rd December, 2003, copy of the aforesaid order along with the plaint and the injunction application and all accompanying documents filed before the Delhi High Court were served upon the plaintiff/opposite party No.1. (f). On 12th January, 2004, the plaintiff/ opposite party No. 1 filed an application under Order 39, Rule 4 read with Section 151 of the Civil Procedure Code for vacating the aforesaid ad interim order passed by the Delhi High Court. (g). On 28th January, 2004, the Delhi High Court refused to vacate the said order of injunction. (h). On 9th February, 2004, the plaintiff/ opposite party No. 1 filed the instant suit being Title Suit No. 178 of 2004 before the City Civil Court at Calcutta, praying for a declaration that he is the exclusive owner of the domain name "NAUKRIE.COM" and a permanent injunction against the petitioner/ defendants from using and/or transferring the said domain name (hereinafter referred to as the instant suit). (i). On the self-same day, the petitioner/ defendants moved an application being I. A. No. 821 of 2004 before the Delhi High Court seeking an injunction to restrain the plaintiff/opposite party No. 1 from interfering and/ or intermeddling with the ownership, use and possession and/or entering into any communication, oral or written, with Network Solutions in respect of said domain name, "NAUKRIE.COM." (j). On 10th February, 2004, the Delhi High Court in presence of the learned lawyer for the plaintiff/opposite party No.1 passed such order of injunction against him, as prayed for. (k). On the self-same day i.e. on 10th February, 2004, an injunction application was moved before the learned Judge-in-charge, City Civil Court, Calcutta in the instant case being Title Suit No. 178 of 2004 and an ex parte ad interim order of injunction was obtained against the petitioner/defendants restraining them from using and/or transferring the domain name "NAUKRIE.COM" till 9-3-2004. (l). Being aggrieved by such ex parte order of injunction dated 10th February, 2004, the petitioner preferred an appeal being F. M. A. T. No. 485 of 2004 before this Court. A Division Bench of this Court by order dated 18th February, 2004 passed an order of stay of operation of the said order of injunction dated 10th February, 2004 for a period of three months. The said order of injunction dated 10th February, 2004 was, therefore, in force for eight days. (m). On 8th March, 2004, the petitioner/ defendants filed an application for staying the instant suit under Section 10 read with Section 151 of the Civil Procedure Code. (n). On 6th April, 2004, alleging violation of the aforesaid order of injunction which was in force for eight days, the plaintiff/opposite party No.1 filed an application under Order 39, Rule 2A read with Section 151 of the Civil Procedure Code before the trial Court being Misc. Case No. 575 of 2004 (hereinafter referred to as the said Misc. Case). (o). On 28th May, 2004, a Division Bench of this Court disposed of the aforesaid appeal being F. M. A. T. No. 485 of 2004 directed against the ad interim order of injunction dated 10th February, 2004 by directing both the parties to maintain status quo as it prevailed immediately preceding the institution of the instant suit being Title Suit No. 178 of 2004. In effect, ad-interim order of injunction dated 10th February, 2004 stood vacated. (p). On 31st March, 2005, the trial Court stayed the proceeding in the instant suit under Section 10 of the Civil Procedure Code. The plaintiff/opposite party No.1 preferred an appeal against such order before this Court which stood dismissed. (q). On 21st December, 2005, the trial Court dismissed the application under Order 39, Rules 1 and 2 of the Civil Procedure Code filed by the plaintiff/defendant No. 1 in the instant suit on merits. (r). Between 2006 and 2010, the trial Court continued to hear the application under Order 39, Rule 2A and presently the matter is pending for recording further evidence of opposite party witness No. 1. (s). After a lapse of four years, on 7th August, 2010, the instant application under Section 151 of the Civil Procedure Code was filed by the petitioner/defendants, praying for dismissal of the said Misc. Case on the ground that the ad interim order of injunction dated 18th February, 2010 was obtained on the basis of fraud and suppression of material facts. Another application for stay of the proceeding in the Misc. Case till disposal aforesaid of the application under Section 151 of the Civil Procedure Code was also filed. (t). By the impugned order dated 11-2-2011 the trial Court dismissed the said applications on the ground that the issue of fraud and misrepresentation of facts are to be determined on evidence.
(3.) Arguing in support of the application Mr. Sakti Nath Mookherjee, Sr. Advocate, appearing with Mr. S. P. Roy Chowdhury, Sr. Advocate, Mr. Jiban Ratan chatterjee, Sr. Advocate, Mr. Hiranmoy Bhattacharya, learned Advocate and Mr. Dipayan choudhury, learned Advocate, submitted that apart from the grounds of fraud and suppression that have been pleaded in the aforesaid application before the trial Court, the aforesaid Misc. Case ought to be dismissed on the ground that the trial Court did not have any jurisdiction to proceed with the same since the order of injunction which was allegedly breached was no longer in existence and there was nothing left for the Court to enforce. He submitted that the scope and ambit of an application under Order 39, Rule 2A of the Civil Procedure Code is exclusively executory in nature and the provisions for attachment or detention in civil prison as provided therein, are only for the purpose of enforcing/executing the said order and not for punishing the defaulting party.;