Ahitiham Ahmad @ Ahitisham Ahmad vs Shakil Ahmad And 2 Others

2. By means of the instant petition, the petitioner assails the order dated 24.02.2026 passed by the Commercial Court No.2, Lucknow whereby it rejected the application preferred by the petitioner under Order 7 Rule 11 CPC in Suit No.154 of 2024 (Shakil Ahmad & others Vs. M/s Globe Cafe & others).

3. Submission of the learned counsel for the petitioner is that the private respondent/plaintiff instituted a suit seeking injunction on the basis that they are registered owner of a trade mark. It is their case that the petitioner herein are misusing the registered trade mark and are guilty of using the mark and for a passing of action, in injunction has been sought.

4. It is urged that the plaintiff has concealed the fact that the defendant who are running a business and it is part of the family business, and is using the said trade mark as a prior user. It is also urged that this concealment indicates that the private respondents have not approached the Court with clean hands, hence their suit deserves to be dismissed in terms of Order 7 Rule 11 CPC.

5. Learned counsel for the petitioner further submits that no cause of action has been indicated and even otherwise the suit is barred by virtue of Section 27, 28, 33 and 34 of the Trade Marks Act. Thus, for all the aforesaid reasons, it is urged that the plaint ought to have been rejected. However, the trial court has erred in rejecting the application under Order 7 Rule 11 CPC, hence it needs interference from this Court.

6. The Court has heard the learned counsel for the petitioner and also perused the material on record.

7. The petitioner has filed a supplementary-affidavit bringing on record the complete copy of the plaint and an application under Order 39 Rule 1 and 2 CPC for injunction and the same is taken on record.

8. At the outset, it may be noticed that an application under Order 7 Rule 11 CPC is to be adjudged on the basis of the averments made in the plaint alone and considering the documents filed by the plaintiff in support of the plaint. At the stage of consideration of an application under Order 7 Rule 11 CPC the Court is required to make a meaningful reading of the plaint and it is not open to cull out sentences in isolation or adopt the reasoning by resorting to compartmentalization while reading the plaint.

9. It is also to be noticed that the averments made in the plaint as far as possible or to be taken to be correct. If on the aforesaid basis a case can be made out that the plaint is barred by any law or does not disclose a valid cause of action inter alia other grounds as mentioned in Order 7 Rule 11 CPC, then a plaint can be rejected.

10. Applying the aforesaid principles to the facts of the instant case, apparently allegations have been made against the defendant regarding their act of misusing the mark of the plaintiff and by using the mark of the plaintiff, they are passing of their trade name as that of the plaintiff and making a gainfall. The plaintiff has made detail averments in this regard and it cannot be said that the cause of action has not been indicated and needless to say the veracity of such averments can only be tested in trial. Learned counsel for the petitioner has not demonstrated as to how it can be said that no cause of action has been disclosed.

11. As far as the plea that the plaint suffers from the concealment, at best it can be a part of defence. Mere omission to indicate that the plaintiff of the suit has not disclosed the fact that the defendants are members of the family perhaps in a suit for passing of action may or may not be very relevant upon which this Court will not make a comment, as the impugned order is to be tested only on the settled principles as applicable in terms of Order 7 Rule 11 CPC.

12. As far as the reference to Section 27, 28, 33 and 34 of the Trademark Act is concerned, having taken note of it, the same also do not come to the aid of the petitioner at this stage to establish that the aforesaid sections bars the suit, considering the averments made in the plaint.

13. The trial court vide the impugned order has categorically taken note of the averments in the plaint and contentions of the respective parties and it has held that there is apparent disclosure of cause of action and it cannot be said that there is no cause of action nor any particular provisions could be pointed out which bars the institution of the suit.

14. It is one thing to say that the suit is barred by law and it is another thing that on the merits that the plaintiff may or may not have a case. Both cannot be inter changed nor can be the merits of defence taken into consideration at the time while considering an application under Order 7 Rule 11 CPC. This Court is satisfied that there is no palpable error in the impugned order dated 20.02.2026 for this Court to interfere in exercise of its power under Article 227 of the Constitution of India.

15. For the aforesaid reasons, the petition sans merit and is, accordingly, dismissed at the admission stage.

(Jaspreet Singh,J.)

May 7, 2026

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