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2025 SCC OnLine Cal 752

In the High Court of Calcutta

(BEFORE RAVI KRISHAN KAPUR, J.)

Kirloskar Brothers Ltd.

Versus
Mitra Trading and Others
IA No. GA-COM/2/2024 and IP-COM/8/2024
Decided on January 27, 2025
Advocates who appeared in this case :
For the plaintiff : Mr. Ranjan Bachawat, Senior. Advocate
Mr. Debnath Ghosh, Senior Advocate Mr. Nishad Nadkarni, Advocate
Mr. Shounak Mitra, Advocate
Ms. Vaibhavi Pandey, Advocate
Mr. Aasif Navodia, Advocate
Mr. Biswaroop Chowdhury, Advocate Ms. Tiasha Gupta, Advocate
For the defendant no. 1 : Ms. Amrita Panja Moulick, Adv.
Mr. Aakash Munshi, Adv.
For the defendant no. 3 : Ms. Sheha Dutta, Adv.
Mr. Soumon Nanda, Adv
For the defendant no. 5 : Mr. Sudipto Sarkar, Senior Advocate
Mr. Soumyo Roy Chwodhury, Advocate Mr. Paritosh Sinha, Advocate
Ms. Shrayashee Das, Advocate
Ms. S. Sehgal, Advocate
Mr. Rohan Kumar Thakur, Advocate Mr. T. Dasgupta, Advocate
The Judgment of the Court was delivered by
RAVI KRISHAN KAPUR, J.:— This is an application for transposition of
the defendant no. 5 Kirloskar Proprietary Limited from the category of
defendant to that of the plaintiff i.e. Kirloskar Brothers Limited.
2. Briefly, the subject matter of the suit pertains to 4 (four)
registered trademarks ‘Kirloskar’ bearing registration nos. 305394,
305395, 150089 and 150850 respectively (the Kirloskar trademarks).
Admittedly, the applicant herein being the defendant no. 5, Kirloskar
Proprietary Limited is the registered proprietor of the above marks.
3. From a plain and ordinary reading of the plaint it appears that the
sole purpose of filing this suit is to protect the mark ‘Kirloskar’ from
third party infringers. The plaintiff alleges to have filed this suit in the
capacity of registered user of the above marks as also in its own
capacity. On the allegation that the defendant no. 5 had not responded
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nor initiated any steps for protection of the above marks, the plaintiff
was compelled to file this suit seeking protective reliefs in respect of
the above marks. In terms of section 52 of the Trade Marks Act, 1999,
the plaintiff registered user, has also impleaded the defendant no. 5 in
its capacity as registered proprietor of the above marks.
4. Significantly, the plaintiff and the defendant no. 5 are also
involved in litigation inter alia before the Pune Civil Court viz. Civil Suit
(Commercial) No. 40 of 2018 and the High Court at Bombay wherein
the plaintiff is asserting its right to use the mark Kirloskar under
different user agreements entered into by and between the plaintiff and
the defendant no. 5.
5. In this suit, the plaintiff alleges a right higher than that of non
exclusive user and has also sought to assert common law rights insofar
as the above marks are concerned. As such, it is contended by the
defendant no. 5 that though the suit has been framed as one to protect
the mark ‘Kirloskar’, there is a real possibility to obfuscate the true and
actual status of the plaintiff vis-a-vis the above mark ‘Kirloskar’. There
is also gross suppression and distortion in the filing of this suit. The
contention that the defendant no. 5 had taken no steps against the
infringers is also denied.
6. On behalf of the plaintiff it is submitted that, there is no provision
whereby the plaintiff can be transposed to the category of the
defendant and the defendant no. 5 to the category of the plaintiff.
There is nothing either under Order 1 Rule 10 of the Code of Civil
Procedure 1908 or any other provision of law to transpose the
defendant no. 5 to the category of plaintiff. In any event, the plaintiff
as dominus litis can choose to file a suit in any form and against any
party.
7. In R. Dhanasundari v. A.N. Umakanth, (2020) 14 SCC 1 it has
been held as follows:
8. The law of procedure relating to the parties to a civil suit is
essentially contained in Order 1 of the Code of Civil Procedure,
dealing with various aspects concerning joinder, non-joinder and
misjoinder of parties. Rule 10 of Order 1 specifically provides for
addition, deletion and substitution of parties; and the proposition for
transposition of a party from one status to another, by its very
nature, inheres in sub-rule (2) of Order 1 Rule 10 CPC that reads as
under:
“10. (2) Court may strike out or add parties.— The Court
may at any stage of the proceedings, either upon or without the
application of either party, and on such terms as may appear to
the Court to be just, order that the name of any party improperly
joined, whether as plaintiff or defendant, be struck out, and that
the name of any person who ought to have been joined, whether
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as plaintiff or defendant, or whose presence before the Court may

be necessary in order to enable the Court effectually and
completely to adjudicate upon and settle all the questions
involved in the suit be added.”
10. It remains trite that the object of Order 1 Rule 10 CPC is
essentially to bring on record all the persons who are parties to the
dispute relating to the subject-matter of the suit so that the dispute
may be determined in their presence and the multiplicity of
proceedings could be avoided. This Court explained the principles,
albeit in a different context, in Anil Kumar Singh v. Shivnath Mishra
[Anil Kumar Singh v. Shivnath Mishra, (1995) 3 SCC 147] in the
following : (SCC p. 150, para 7)
“7. … The object of the rule is to bring on record all the persons
who are parties to the dispute relating to the subject-matter so
that the dispute may be determined in their presence at the same
time without any protraction, inconvenience and to avoid
multiplicity of proceedings.”
8. The Code of Civil Procedure invests very wide and extensive
discretionary powers on any Court in the matter of joinder of parties.
Such powers can be exercised by adding, deleting, substituting or
transposing parties to a suit with a view to adjudicating the true and
real controversy before Court and by avoiding multiplicity of
proceedings. The powers can be exercised at any stage either on an
application by a party or suo motu and on such terms as the Court may
think just and proper. At the same time, like all other discretionary
powers, the power to add, delete, substitute or transfer a party ought
to be exercised reasonably and on sound judicial principles. However,
an order for addition, deletion, substitution or transposition cannot be
made so as to change the nature of the suit or cause of action or to
interfere with rights accrued in favour of any party. The primary object
being to save honest and bonafide plaintiffs in pursuing their claims
and for complete and effectual adjudication of the real controversy
raised in the suit.
9. It is also well settled that a question of joinder of parties is a
matter of procedure and not of substantive right. It is true that a
plaintiff as dominus litis has the right to choose an adversary against
whom he wants to fight and the reliefs he seeks. Nevertheless, the
principle of dominus litis cannot be overstretched since it is also the
duty of every Court to ensure complete justice in deciding the real
controversy in dispute and in ascertaining the truth.
10. Admittedly, both the plaintiff and the defendant no. 5 seek to
protect the mark ‘Kirloskar’. This is the real and only object of the suit.
Both parties are projecting the same claim against the remaining
defendants. The success of one is the success of the other. There can
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be no question of the plaintiff consequentially or indirectly being able to

obtain any finding relating to the rival rights of the plaintiff or the
defendant no. 5 insofar as the mark ‘Kirloskar’ is concerned in this suit.
There is also an element of honesty, good faith and bona fides which
requires to be taken into consideration in deciding the question of
transposition and ruling out any chance of collusion with the other
contesting defendants. The damage which can indirectly be caused
insofar as the true rights of the defendant no. 5 vis-a-vis the plaintiff
knowing of the pendency of the Pune suit cannot be obviated [R.
Dhanasundari (Supra), Nalini Sekaran v. Ilangovan, 2022 SCC OnLine
Mad 3145 and Selvaraj v. Sundararajan, CRP (PD) No. 923 of 2003,
order dated 15-4-2005 (Mad)]
11. Undoubtedly, the respondent no. 5 has a superior right of
ownership and legal standing than that of the plaintiff as registered
user. The defendant no. 5 also has a genuine interest in this lis. The
similar and common interest of both the plaintiff and the defendant no.
5 in protecting the above marks insofar as third parties are concerned is
the only object of this suit. Such transposition of the defendant no. 5
who might have been the original plaintiff to the category of plaintiff
does not change the nature of the suit or the cause of action or
prejudice the rights of any of the parties. There are no reliefs being
sought for against the plaintiff and even as proforma defendant, the
plaintiff can continue to witness the steps taken to protect the above
marks. Such transposition also ensures that the suit does not proceed
with for any collateral purpose or with oblique intent to prejudice the
rights of the defendant no. 5. This would also serve in doing complete
justice between the parties insofar as the cause of action in this suit is
concerned. In this context, Order 1 Rule 11 permits the Court to give
the conduct of the suit to such persons as it deems fit and proper. The
cause of action is what requires to be preserved. In view of the consent
and acquiescence of the respondent no. 5 in pursuing the suit, there is
no question of the respondent no. 5 being denied such right. The
consent of a party impleaded as defendant is not necessary and
transposition can be ordered even without the consent of a party who is
transposed to the category of a defendant. Liberty is granted to the
plaintiff to file an appropriate application seeking costs in accordance
with law, if so advised.
12. For the above reasons, this application stands allowed. There
shall be an order in terms of prayers (a) to (d) of the Notice of Motion.
With the above directions, GA 2 of 2024 in IP-COM/8/2024 stands
disposed of.
Later:
After pronouncement of the judgment, the plaintiff prays for stay of
operation of the judgment.
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The prayer for stay is considered and rejected.

———
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