No Appeal Maintainable Under Order XLIII Rule 1 CPC Against Order Refusing Application For Rejection Of Plaint: Delhi High Court

While holding that an appeal can be filed only against the orders passed by a Court which are specifically provided under Order XLIII Rule 1, the bench of Justice Manmohan and Justice Saurabh Banerjee said that Order VII Rule 11 of CPC does not find any mention in Order XLIII Rule 1.

The appellant, Bhushan Oil and Fats Pvt Ltd, filed an application under Order VII Rule 11 of the CPC in a trademark infringement suit instituted by the respondent, Mother Dairy Fruit and Vegetables Pvt Ltd, before the high Court. Seeking dismissal of the suit before the single bench, the appellant contended that the infringement suit was not maintainable since the impugned trade mark was registered.

The Single Judge, after referring to the provisions of Order VII Rule 11 of CPC and the relevant provisions of the Trade Marks Act, 1999, dismissed the application. Bhushan Oil and Fats filed an appeal against the order.

Mother Dairy raised a preliminary objection and disputed the maintainability of the appeal.

Referring to the provisions of Order XLIII Rule 1 of CPC, the court reckoned that an appeal can be filed only against the orders which are specifically provided under Order XLIII Rule 1.

“As such, since there is no provision for filing an appeal from an order of refusal of an application under Order VII rule 11 of the CPC passed by a Court and in view of the clear intent of the legislature as there is no mention thereof, no appeal can be maintainable under the said provisions of Order XLIII rule 1 of the CPC. The said provision of Order VII rule 11 of the CPC does not find any mention in Order XLIII rule 1 of the CPC,” the Court said.

The court added that the mention of Order VII Rule 10 of CPC in Order XLIII Rule 1(a) cannot be of any assistance to the party which is challenging the order where an application under Order VII Rule 11 is rejected. “The scope and guiding factors of an application under Order VII rule 10 of the CPC are very different from that of an application under Order VII rule 11 of the CPC and they stand on a completely different footing,” the court said.

Observing that it is an unwritten principle of law that all parties to a suit are bound by the statute, the court said: “There being no provision envisaged for an appeal against such an order, including the impugned order herein, in the provisions envisaged in Order XLIII rule 1 of the CPC, no appeal can lie against the impugned order of rejection of an application under Order VII rule 11 of the CPC. There being no provision for such an appeal under the provisions of Order XLIII rule 1 of the CPC, the present appeal is not maintainable in the eyes of law.”

The Court took note that a Coordinate Bench of the Delhi High Court in Odean Builders (P) Ltd. v. NBCC (India) Ltd, 2021 SCC OnLine Del 4390, has ruled that no appeal is maintainable against any order not provided in the provisions of Order XLIII of the CPC. Further, in the appeal filed against the decision of the coordinate bench, the apex court in M/s Rayban Foods Pvt Ltd v. M/s Gac Logistics Pvt Ltd (2022), has upheld the decision of the High Court, the Court noted.

“Since the appeal in the present form is not maintainable in the eyes of law or on facts, there is no occasion for this Court to proceed with either the merits of the contentions raised therein by the appellant of the matter or give any finding qua the legal aspects sought to be argued by the learned counsel for the appellant before us”, the court concluded.

The Court thus dismissed the appeal in limine.

Case Title: Bhushan Oil and Fats Pvt Ltd versus Mother Dairy Fruit and Vegetables Pvt Ltd

Citation: 2023 LiveLaw (Del) 59

Counsel for the Appellant: Mr. Ankit Sahani, Mr. Chirag Ahluwalia, Mr. Aashish Arora, Advocates.

Counsel for the Respondent: Mr. Chander M. Lall, Sr. Advocate, Mr. Atul Batra, Ms. Ananya Chug and Mr. Kundan Kumar, Advocates

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