JAYANTA KUMAR BISWAS, J. - (1.) THIS is an application under Section 10 of the Code of Civil Procedure, 1908 (in short, 'the CPC'); it has been filed by the defendants in C.S. No. 138 of 2003. It is for stay of the suit and dismissed of the interlocutory application (G.A. No. 1675 of 2003) filed by the plaintiffs in the suit.
(2.) PLAINTIFF 1 is the proprietor of the registered trade mark 'GLUCON -D'. Under the trade mark plaintiff 2 is manufacturing and marketing an instant energy drink. Defendant 1 is manufacturing and selling an instant energy drink under the trade mark 'GLUCOSE -D'. Alleging that acts of defendant 1 amounted to infringement of registered trade mark and passing off, the plaintiffs filed Civil Suit No. 2 of 2003 in the Court of the Additional District Judge at Gurgaon (Haryana). Such suit filed on February 19th, 2003 is pending. The present suit was filed on May 8th, 2003. Alleging that the matter in issue in the present suit is also directly and substantially in issue in the previously instituted suit, the defendants have filed this application under Section 10 of the Code of Civil Procedure. Mr. Sudipto Sarkar appears for the defendants. He submits that the Gurgaon suit was filed by the plaintiffs on February 19th, 2003. The packet complained of in the Gurgaon suit was not in use when the suit was filed, because in January, 2003 the defendants had introduced a new packet. Reliefs prayed for in the Gurgaon suit cover all packets used by defendant 1 for selling its energy drink under the trade mark 'GLUCOSE -D'. So the packet complained of in the present suit cannot be excluded from the effect of the orders passed and the final decision to be taken in the pending Gurgaon suit. Defendant 1 in its written statement filed in the Gurgaon suit, before filing of the present suit by the plaintiffs, disclosed the packet complained of in the present suit. From the statements in the pleadings of the two suits and the prayers made in them one can scarcely find any material to distinguish them. Hence, it is a fit case where the present suit, involving substantially the same issue as in the prior Gurgaon suit, should be stayed. For staying the subsequent suit matters in issue in it need not be identical with the prior suit; it is sufficient if the matters in issue in the two suits are substantially same.
(3.) MS . Anuradha Salhotra appears for the plaintiffs. In reply she submits that the causes of action and the subject matters of the two suits are different. The packets complained of in them are different. As held in Vallabh Das v. Dr. Madanlal and Ors., : [1977]1SCR211 unless reliefs in two suits are claimed on same cause of action, their subject matter will not be same; and mere identity of some of the issues in two suits does not bring about an identity of their subject matter. In Adhish Chandra Sinha v. Hindusthan Gas and Industries Ltd., : AIR1985Cal154 (DB) it was held that for attracting Section 10 the subject of both the suits must be identical, and mere existence of a common issue in both the suits would not make their subject matter identical. It was held in Bengal Waterproof Ltd. v. Bombay Waterproof Manufacturing Company and Anr, : AIR1997SC1398 that infringement of a registered trade mark and passing off from time to time would give a recurring cause of action to the holder of the trade mark to seek appropriate relief from the Court by filing more than one suit. Hence on the facts of the present case provisions of Section 10 of the Code of Civil Procedure would have no manner of application, and the plaintiffs are entitled to proceed with the present suit.;