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Bright Enterprises Private Ltd. & Anr. v. MJ Bizcraft LLP & Anr. (04.01.2017) (Delhi HC)

Posted By Shrihar on 01 Aug 2017


  • The plaintiffs claimed that their MBD PRIVE and PRIVE was infringed by the defendants because they were using trademark ‘PRIVEE‘ which was deceptively similar to the plaintiff’s trademark. 
  • The plaintiffs were engaged in Hotel Business. The defendants were the owners of night club.
  • The suit filed was a commercial suit for damages of Rs. 1 crore.
  • The suit came up for hearing before a learned Single Judge of this Court on 19.07.2016, whereupon it was directed that the matter be listed before another Bench on 22.07.2016.
  • On 22.07.2016, when the matter appeared before another learned Single Judge on the Original Side of this Court, he heard the counsel for the plaintiffs on admission and reserved orders.
  • This was followed by the impugned judgment dated 08.08.2016, whereby, as pointed out above, the learned Single Judge, without issuing any summons to the defendants/respondents, dismissed the suit, after going into the merits of the claims raised by the plaintiffs. The suit was dismissed in limine by the learned Single Judge.


 The single judge relied on the decision in Dr Zubair Ul Abidin v. Sameena Abidin    @ sameena Khan: 214 (2014) DLT 240 (DB) and observed that a suit can be dismissed at any stage by the judge he feels that there is no chance of success of the suit.

The judge also pointed out that under Order XIIIA of the CPC the judge can dismiss any commercial suit without recording the evidence. 


  • In their appeal against summary disposal of the suit, the plaintiffs contended that Rule 2 of Order XIIIA requires that a summary disposal can take place only if an application for the same is made. Additionally, the application must be made after serving of summons on the defendant. Further other side was not heard.


  • It was submitted by the defendants was the provisions of Order XIIIA Rule 3 of the CPC vest the court with wide powers and the mechanism for invoking such powers which have been provided to a party under Rule 2 could not be treated as a condition precedent to the exercise of that power.
  • It was also submitted that a provision has to be interpreted in such a manner that every procedure is to be regarded as permitted to the Court unless it is expressly prohibited and not the other way round that every procedure is prohibited unless expressly permitted.
  • The use of the word ‘may’ instead of ‘shall’ clearly implied that it wasn’t necessary to issue summons before dismissing the suit.


  • Whether the Court had discretion to issue or not to issue summons given that the suit had been duly instituted?


 The court held that the decision of single judge bench was bad in law and the  dismissal of suit at the admission stage without issuing summons is contrary to the provisions of statute.  OBSERVATION

The court observed that Order XIIIA Rule 2 makes a clear stipulation with regard to the stage for application for summary judgment. The window for summary judgment is after the service of summons on the defendant and prior to the Court framing issues in the suit. The court also observed that the single judge gave his decision without giving the other party an opportunity to rest its case. The decision was based on the single judge’s own research.

Rule 4(2) of Order XIIIA also requires that where a hearing for summary judgment is fixed, the respondent must be given at least thirty days‘ notice of the date fixed for the hearing and the claim that is proposed to be decided by the Court at such hearing.


The court rightly held that a suit cannot be rejected summarily without application and without issuing summons to the opposite party. This is not only against the principles of natural justice but is also against law. The suit can be dismissed summarily only after giving the opposite party an opportunity to be heard.

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