M/S BENGAL WATERPROOF LIMITED versus MIS BOMBAY WATERPROOF MANUFACTURING CO. AND ANR.

Citation: [1996] SUPP. 8 S.C.R. 695 · Decided: 18-11-1996 · Supreme Court of India · Bench: A.S. ANAND · Disposal: Appeal(s) allowed

Judgment (excerpt)

M/S BENGAL WATERPROOF LIMITED 
v. 
MIS BOMBAY WATERPROOF MANUFACTURING CO. 
AND ANR. 
NOVEMBER 18, 1996 
[DR. A.S. ANAND AND S.B. MAJMUDAR, JJ.] 
A 
B 
Civil Procedure Code, 1908-0r 2 R 2 (3)-Bar in respect of claim 
of relief in subsequent suit-The plea of bar under Or 2 R 2 (3) CPC is 
maintainable only if the defendant files in evidence before the trial Court 
the pleadings in the previous suit to prove identity of cause of action in the C 
two suits-Inference about the bar cannot be culled merely from the plaint 
in the second case-Attempt to bring the pleadings of the earlier suit on 
record at the stage of proceedings before Supreme Court not allowed. 
Trade and Merchandise Marks Act, 1958, Copy Right Act-In case 
of continuing or recurring wrong there would be corresponding, continuous D 
or recurrent causes of action-Action for passing off-Continuing deceit 
gives rise to fresh causes of action-First suit based on infringement of 
plaintiff's trade mark by defendants and passing off of the defendants 
goods as if they were plaintiff's goods-Second suit based on continuous 
acts of infringement of its trade mark and continuous passing of action en E 
the part of the defendants subsequent to filing of the earlier suit and 
continuing till the date of filing of the second suit-Cause of action in the 
two suits are different-One of the ingredients of Or 2 R 2 (3) thus having 
not been satisfied, bar thereunder could not operate. 
Limitation Act 1963 S.22-In a case of continuing breach of con/met F 
or continuing tort-A fresh period of limitation runs at every moment of 
the time during which the breach or the tort continues.· 
The appellant company, manufacturing and marketing 
waterproof goods and rubberised waterproof raincoats throughout G 
the country under the trade mark 'Duck Back', was registered under 
the Trade and Merchandise Marks Act, 1958 and the Copy Right Act. 
It filed original Suit No. 238 of 1980 in City Civil Court, Hyderabad 
against the respondents alleging that they were manufacturing and 
marketing similar products under the trade mark 'Dack Back' which 
phonetically and visually resembles the plaintiff's trade mark resulting H 
695 
696 
SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R. 
A in confusion among consumers and amounted to passing off the 
appellant's goods as of the respondents'. The suit was dismissed on 6th 
April, 1982 on the ground that there was no infringement of the 
appellant's trade mark 'Duck Back' by the respondents. In the year 
1982 the second suit was tiled in the City Civil Court, Hyderabad by 
the appellant against the respondents inter alia alleging that they were 
B ill-advised and mis-informed in tiling the first suit and further alleged 
that even after 1982, the respondents were carrying on infringement 
of their registered trade mark and were passing off their goods as the 
goods of the appellants and prayed for permanent injunction restraining 
the respondents from infringing their trade-mark and copy right as 
well as from passing off their goods as if they were of the appellant's. 
C The trial court held that the suit was barred by the provisions of Order 
2 Rule 2 Sub Rule (3) of the CPC. On appeal, the High Court held that 
the appellants had proved their case of pasting off against the 
respondents but upheld the finding of the trial court that the suit was 
barred by order 2 Rule 2 sub rule (3) of the CPC and thus dismissed 
the same. Aggrieved, the plaintiff tiled the present appeals. 
D 
Allowing the appeal, this Court 
HELD:l.I. A suit can be said to be barred under. Order 2, Rule 
2 (sub rule 3) CPC if it is shown that the second suit is based on the 
same cause of action on 'l'hich the earlier suit was based; and if the 
E cause of action is the same in both the suits and if in the earlier suit 
the plaintiff bad not sued for any of the reliefs available to him of 
that cause of action, the relief which the plaintiff bad failed to pray 
in that suit can not be subsequently prayed for except with the leave 
of the Court. [702-H, 703-A-B] 
F 
1.2. As regards the plea of the respondents that suit is barred 
under order 2 Rule 2 sub rule (3) there is a threshold bar against 
them for their failure to bring on record of the trial court the pleadings 
of the earlier suit. No inference can be drawn in absence of the pleading 
of the previous suit being on record. Even before the High Court no 
G attempt was made by them to produce the pleading in the earlie

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