CR-2708-2023 (O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR-2708-2023 (O&M) Gujarat Cooperave Milk Markeng Federaon ...Peoner Versus Modern Dairies Ltd. and another ...Respondents Reserved on: 14.07.2026 Pronounced on: 15.07.2026 Pronounced fully/opera2ve part: Fully CORAM: HON'BLE MR. JUSTICE DEEPAK GUPTA Argued by: Mr. Abhishek Singh, Advocate and Mr. Arnav Sood, Advocate for the peoner. Ms. Savita Bhandari, Advocate for the respondents. **** DEEPAK GUPTA, J. The defendants have invoked the supervisory jurisdicon of this Court under Arcle 227 of the Constuon of India assailing the order dated 12.01.2023 (Annexure P-1) passed by the Commercial Court, Karnal, whereby their applicaon under Order VII Rule 11 CPC seeking rejecon of the plaint in a commercial suit bearing No. CS-01-2021 ‘Modern Dairies Ltd. vs Gujarat Co-operave Milk Markeng Federaon Ltd. & Another’ has been dismissed. 2. The Commercial Court rejected each of the grounds urged by the defendant. Before this Court, however, learned counsel for the peoners has confined the challenge only to one ground, namely, that the plaint does not disclose any cause of acon. 3. Learned counsel for the peoners submits that the registered trade mark of the plainff is "Mehak Pyaar Ki Swaad Khushiyo Ka", whereas YOGESH MEHTA 2026.07.15 15:54 I attest to the accuracy and integrity of this document CR-2708-2023 (O&M) [2] the adversement (Annexure P-3) issued by the peoners uses the expression "Apne Pariwar ko Dijiye Khushiyo ka Swaad". It is argued that in view of Secon 17 of the Trade Marks Act, 1999, registraon confers exclusive rights only in respect of the trade mark taken as a whole and not in respect of any part thereof. Since the peoner has admi?edly not used the registered trade mark in its enrety, no cause of acon for infringement is disclosed in the plaint. Consequently, the plaint deserved rejecon under Order VII Rule 11(a) CPC. 4. Per contra, learned counsel appearing for the respondent- plainff submits that the peoners have selecvely relied upon only one limb of the plaint. Inving a?enon to paragraph 5 of the plaint, it is contended that apart from infringement of the registered trade mark, the plainffs have specifically pleaded that they conceived, adopted and connuously used the disncve tagline "Swaad Khushiyo Ka" since the year 2011 and that the defendants have dishonestly adopted a decepvely similar expression amounng to passing off and infringement of their proprietary rights acquired by prior user. It is argued that whether such plea ulmately succeeds is a ma?er of evidence and cannot be examined while deciding an applicaon under Order VII Rule 11 CPC. 5. Having heard learned counsel for the pares, I find no ground to interfere with the impugned order. 6. The scope of enquiry under Order VII Rule 11(a) CPC is well se?led. While considering whether a plaint discloses a cause of acon, the Court is required to confine itself only to the averments contained in the plaint and the documents relied upon therein. The correctness, truthfulness or ulmate sustainability of those averments is wholly irrelevant at that stage. If on a meaningful reading of the plaint, a bundle of facts giving rise to a right to sue is disclosed, rejecon of the plaint is impermissible. It is equally well se?led that the plaint has to be read as a whole and not by YOGESH MEHTA 2026.07.15 15:54 I attest to the accuracy and integrity of this document CR-2708-2023 (O&M) [3] dissecng isolated pleadings or reliefs. The Court cannot embark upon an adjudicaon of the merits of the controversy or examine the probable defence of the defendant while exercising jurisdicon under Order VII Rule 11 CPC. 7. A perusal of the plaint shows that the plainffs have not rested their claim exclusively on alleged infringement of the registered trade mark. They have also specifically pleaded that the expression "Swaad Khushiyo Ka" was independently conceived and adopted by them as a disncve tagline, that it has acquired goodwill and disncveness by prior and connuous use, and that the defendants have adopted a decepvely similar expression with an intenon to ride upon such reputaon. The relief clause also seeks injuncon in this regard. 8. It is trite that an acon for passing off is a common law remedy founded upon prior user and goodwill and is independent of statutory registraon. Even an unregistered mark, slogan or tagline may, if it has acquired disncveness, furnish a valid foundaon for an acon in passing off. Whether the plainffs are able to establish prior adopon, goodwill, reputaon, decepve similarity or likelihood of confusion are all ma?ers requiring evidence and cannot be prejudged at the threshold. 9. The contenon founded upon Secon 17 of the Trade Marks Act also does not persuade this Court to reject the plaint. Whether Secon 17 defeats the plainffs' claim for infringement, whether the impugned expression constutes use of a part of the registered mark, and whether such use a?racts the statutory protecon or otherwise are all issues touching the merits of the controversy. Those quesons may constute a substanal defence available to the defendant, but they cannot be converted into a ground for holding that the plaint itself discloses no cause of acon. At this stage, the Court is not concerned with the probable success or failure of the suit. YOGESH MEHTA 2026.07.15 15:54 I attest to the accuracy and integrity of this document CR-2708-2023 (O&M) [4] 10. Hon’ble Supreme Court has consistently held that a plaint cannot be rejected merely because the Court is of the opinion that the plainff may ulmately fail in establishing the claim. So long as the plaint discloses a triable cause of acon, the suit must proceed to trial. The disncon between ‘absence of a cause of acon’ and ‘failure to prove a cause of acon’ is necessary to be kept in mind. The former alone a?racts Order VII Rule 11(a) CPC. 11. In the present case, the plaint contains clear factual asserons regarding prior user, decepve similarity and infringement of its trademark. These averments, if assumed to be correct for the limited purpose of Order VII Rule 11 CPC, unquesonably disclose a cause of acon requiring adjudicaon aJer pares lead evidence. Whether the plainffs ulmately succeed or whether the defence based upon Secon 17 of the Trade Marks Act is sustainable, are ma?ers to be determined during trial. 12. The Commercial Court has, therefore, rightly declined to reject the plaint. The impugned order neither suffers from any jurisdiconal error nor discloses any perversity warranng interference under Arcle 227 of the Constuon of India. 13. Accordingly, finding no merit in the present revision peon, the same is dismissed. Nothing observed herein shall be construed as an expression of opinion on the merits of the suit, which shall be decided independently on the basis of the evidence led by the pares. 15.07.2026 (DEEPAK GUPTA) Yogesh JUDGE Whether speaking/reasoned:- Yes/No Whether reportable:- Yes/No Uploaded on: 15.07.2026 YOGESH MEHTA 2026.07.15 15:54 I attest to the accuracy and integrity of this document