1

C.M.R.A. No.417 of 2023 (M/S M.M. I. Tobacco

Pvt. Ltd. And another vs. Iftikhar Alam).

Reserved on 19.04.2024.

Delivered on 26.04.2024.

A.F.R.

Neutral Citation No. - 2024:AHC:73463

Court No. - 53

Case :- CIVIL MISC REVIEW APPLICATION No. - 417 of

2023

Applicant :- M/S. M.M.I. Tobacco Pvt. Ltd. And Another

Opposite Party :- Iftikhar Alam

Counsel for Applicant :- Arvind Srivastava

Counsel for Opposite Party :- Santosh Kumar Tripathi

Hon'ble Kshitij Shailendra,J.

REVIEW AGAINST ORDER OF REMAND

1. This application under Section 114 of the Code of

Civil Procedure, 1908 (hereinafter referred to as ‘the Code’)

has been filed by the plaintiffs of Original Suit No. 20 of 2022

(M/s. M.M.I. Tobacco Pvt. Ltd. and another vs. Iftikhar

Alam) seeking review of my final judgment and order dated

07.08.2023 passed in First Appeal From Order No.77 of 2023

(Iftikhar Alam vs. M/s. M.M.I. Tobacco Pvt. Ltd. & Another).

By the said order, I had allowed the appeal and remanded the

matter to the trial court for fresh consideration of the

injunction application with certain directions.

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C.M.R.A. No.417 of 2023 (M/S M.M. I. Tobacco

Pvt. Ltd. And another vs. Iftikhar Alam).

REMAND ORDER ALREADY GIVEN EFFECT TO

2. It is not disputed that pursuant to the order of

remand, the trial court has already decided the injunction

application afresh by order dated 30.01.2024, against which,

First Appeal From Order No.411 of 2024 (M/s M.M.I.

Tobacco Pvt. Ltd. and another vs. Iftikhar Alam) has been

filed by the plaintiff-applicants before this Court that has been

connected with this review application.

TWO ASPECTS INVOLVED

3. There are following two aspects associated with the

present review application:-

(i) Maintainability/entertainability of the review

application in view of the subsequent order passed by

the trial court, and

(ii) Merits of grounds, on which review has been sought.

COUNSEL HEARD

4. Heard Sri T.P. Singh, learned Senior Counsel,

assisted by Sri Arvind Srivastava as well as Sri Arvind

Srivastava separately, learned counsel for the applicants in

review and Sri Shashi Nandan, learned Senior Counsel,

assisted by Sri Santosh Kumar Tripathi, for the respondent.

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C.M.R.A. No.417 of 2023 (M/S M.M. I. Tobacco

Pvt. Ltd. And another vs. Iftikhar Alam).

MAINTAINABILITY/ ENTERTAINABILITY OF THE

REVIEW APPLICATION

PRELIMINARY OBJECTION:

5. A preliminary objection has been raised by Shri

Shashi Nandan, learned Senior Counsel for the respondent

and, to some extent, by the Court itself, that since the order of

remand sought to be reviewed has already been given effect

to and the trial court has decided the injunction application

afresh by order dated 30.01.2024, against which, an appeal

has been preferred by the applicants, the review application

has become infructuous and it would be an exercise in futility

to entertain the same on merits at this stage.

CONTENTION OF APPLICANTS:

6. Shri T.P. Singh, learned Senior Counsel as well as

Shri Arvind Srivastava, responding to the preliminary

objection, argued with vehemence that review application

would not lose its efficacy merely for the reason that pursuant

to the order of remand, injunction application has again been

decided by the trial court. Shri Srivastava submits that review

application was filed prior to disposal of the injunction

application but it remained pending in this Court and the court

below, in the meantime, decided the injunction application.

He, otherwise, submits that application for review has to be

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C.M.R.A. No.417 of 2023 (M/S M.M. I. Tobacco

Pvt. Ltd. And another vs. Iftikhar Alam).

heard on merits as there is no concept like “infructuous” in

civil law, particularly, when multiple remedies available to a

litigant under the Code do not prohibit consideration of one or

the other on merits despite advancement of stage of

proceedings. Shri Srivastava, by placing reliance on a recent

judgment of this Court in the case of Smt. Yasmeen Zia vs.

Smt. Haneefa Khursheed and others, 2024 (2) ADJ 709,

submitted that even in a case where an order of remand is

under challenge and, during pendency of the challenge,

proceedings finally culminate and even in a case where a

decree is also drawn, the challenge made to the order of

remand would still survive and there is no prohibition under

the law which can restrict consideration of the challenge made

to the remand order. He has also placed reliance on the

judgment of Supreme Court in the case of Nagesh Datta

Shetti & others vs. The State of Karnataka and others,

(2005) 10 SCC 383, on the same lines.

CONTENTION OF RESPONDENT:

7. Per contra, Shri Shashi Nandan, learned Senior

Counsel submits that the judgments cited on behalf of the

applicants are clearly distinguishable on facts and in the case

of Smt. Yasmeen Zia (supra), the factual position was that

the suit was decided by the trial court on a preliminary point;

decree was reversed by the first appellate court and the matter

was remanded to the trial court and, during pendency of

challenge to the order of remand, the trial court decided the

proceedings, against which order, an appeal was filed. He

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C.M.R.A. No.417 of 2023 (M/S M.M. I. Tobacco

Pvt. Ltd. And another vs. Iftikhar Alam).

further submits that ratio laid down in Smt. Yasmeen Zia

(supra) would be read in relation to the decree and appeal

arising therefrom and the said analogy cannot be applied in a

case where review of remand order is sought. As regards the

judgment of Supreme Court in Nagesh Datta Shetti (supra),

he submits that in the said case, an appeal was preferred

before the Division Bench of the High Court, aggrieved

primarily by that part of the order of learned Single Judge

who had remanded the matter to the tribunal and, though the

appeal was admitted, the tribunal, in absence of an order of

stay, finally decided the rights of the concerned party and the

Supreme Court, in peculiar facts of that particular case,

rendered its decision.

ANALYSIS OF RIVAL CONTENTIONS

8. Having heard learned counsel for the parties on

maintainability/entertainability of the review application in

the light of subsequent decision on injunction application, this

Court finds that substantive provision of review of any

judgment or order is contained under Section 114 of the Code

and is governed by the procedure laid down under Order

XLVII. The power of the appellate court to remand a case to

the trial court is contained under Order XLI Rules 23, 23-A

and 25 of the Code and this Court does not find any such

provision under the Code, either express or implied, that

would take away the right of a party aggrieved by order of

remand to raise a challenge to the same, either before a

superior court or before the same court by means of a review

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C.M.R.A. No.417 of 2023 (M/S M.M. I. Tobacco

Pvt. Ltd. And another vs. Iftikhar Alam).

application, merely because the remand order has been given

effect to in terms of a subsequent order. The only prohibition

against consideration of an application at an advanced stage

of proceedings can be found in a case where an ex-parte

decree drawn by the trial court merges into decree of

appellate court and, in that event, application for setting aside

the ex-parte decree would not lie before the trial court; vide

Explanation attached to Rule 13 of Order 9 C.P.C

9. This Court is in agreement with the proposition of law laid

down in the judgments rendered in Smt. Yasmeen Zia

(supra) and Nagesh Datta Shetti (supra) and would read the

ratio in favour of the review-applicants. The Supreme Court,

in Nagesh Datta Shetti (supra), did not agree with the view

taken by the High Court that had held the writ appeal as

infructuous because of the subsequent decision of the tribunal

and the Apex Court, in clear terms, observed that the Division

Bench of the High Court should have considered the matter

on merits instead of rendering the appeal as infructuous.

Similarly, this Court, in Smt. Yasmeen Zia (supra), held that

the right of appeal conferred by a Statute, being a substantive

right, it would not be legitimate to read a statutory provision

imposing any limitation or disability which the legislature did

not deem appropriate to insert.

10. This Court does not agree with the submission of

Shri Shashi Nandan that the factual background in which the

cases of Smt. Yasmeen Zia (supra) and Nagesh Datta Shetti

(supra) were decided and the one involved in the present case

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C.M.R.A. No.417 of 2023 (M/S M.M. I. Tobacco

Pvt. Ltd. And another vs. Iftikhar Alam).

is different so as to preclude the applicants to seek review of

the order of remand. This Court is of the considered view that

irrespective of the fact that both the said judgments had arisen

from a situation where challenge to the remand order was

made before appellate Court, an appeal as well as review,

being creatures of statute, the right to lay a challenge, either

by way of appeal or by review or otherwise, would fall on the

same footings and merely because the remand order has been

given effect to in terms of a subsequent decision, the same

would not render the challenge as infructuous or not

maintainable.

11. The Court may also notice that the instant review

application was filed more than four months prior to the

subsequent decision made by the trial court and though, this

Court, by first order dated 11.09.2023 passed on the instant

review application, made it clear that mere filing or pendency

of the review application would not be deemed to passing of

an interim order affecting operation of the order sought to be

reviewed or further proceedings pursuant thereto, the mere

fact that the injunction application has been decided on

30.01.2024, the review application cannot be held to be not

maintainable and the challenge made cannot be thrown away

on the ground of maintainability.

CONCLUSION ON FIRST ASPECT

12. In view of the above discussion, the applicants

succeed on the first aspect and the instant review application

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C.M.R.A. No.417 of 2023 (M/S M.M. I. Tobacco

Pvt. Ltd. And another vs. Iftikhar Alam).

is held to be maintainable. Therefore, this Court proceeds to

decide the same on merits.

MERITS OF REVIEW APPLICATION

CONTENTION OF APPLICANTS:

13. Learned counsel for the applicants, on merits of the

review application, have vehemently argued that there is an

error apparent on the face of record in the order dated

07.08.2023, in which, this Court had dealt with the concept of

“prior user” of the concerned product and, on this ground,

remanded the matter to the trial court for fresh consideration,

although there was no pleading of the defendant/respondent in

relation to prior user of the product. It is contended that since

no evidence can be led beyond pleadings, the order dated

07.08.2023 needs to be reviewed. It is also urged that the

defendant/respondent concealed material facts throughout the

proceedings, particularly rejection of his rectification

application by the Assistant Registrar of Trade Marks by an

order passed in the year 2010, against which, an appeal was

preferred by the respondent which was also dismissed in year

2011 by the appellate board, whereafter, a review application

filed by the respondent was also rejected in year 2012 and

further challenge made by him before the High Court of

Calcutta also ended in terms of dismissal order passed in year

2013 but the respondent nowhere brought these facts on

record which came to the notice of the applicants

subsequently and, hence, order dated 07.08.2023 should be

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C.M.R.A. No.417 of 2023 (M/S M.M. I. Tobacco

Pvt. Ltd. And another vs. Iftikhar Alam).

reviewed on the ground of discovery of new and important

material. It is also argued that concealment amounts to fraud

that is sufficient to vitiate the entire claim or defence of a

party and had the said proceedings been disclosed by the

defendant/respondent before the Court below or this Court,

the situation would have been adverse to him but he

succeeded to obtain an order based upon gross concealment of

material facts.

WRITTEN SUBMISSIONS:

14. Written submissions have also been filed on behalf

of the applicants raising various contentions including a

dispute regarding the serial no. of trademark on which it is

registered. The proceedings held in Calcutta have also been

described and it has been contended that there being error

apparent on the face of the order sought to be reviewed, an

adjudication made without there being pleadings; certain facts

and documents having been discovered subsequently; the

order dated 07.08.2023, having been obtained by making

concealment of material facts and proceedings, the review

application should be allowed. Reliance has been placed on

the following authorities in support of all contentions raised:-

(a). Srinivas Raghavendrarao Desai (Dead) By Lrs. vs.

V. Kumar Vamanrao @ Alok and others, AIR 2024

(SC) 1310;

(b). Ganga Prasad Rai vs. Kedar Nath Rai and another,

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C.M.R.A. No.417 of 2023 (M/S M.M. I. Tobacco

Pvt. Ltd. And another vs. Iftikhar Alam).

(2019) 3 ARC 624;

(c). Bachhaj Nahar vs. Nilima Mandal, (2008) 17 SCC

491;

(d). S. Bagirathi Ammal vs. Palani Roman Catholic

Mission, (2009) 10 SCC 464;

(e). Board of Control of Cricket in India vs. Netaji

Cricket Club (2005) 4 SCC 741;

(f). Mukhtar Ahmad vs. Addl. District Judge, 1978 ARC

118;

(g). The Selection Committee for Admission to the

Medical and Dental College, Bangalore vs. M.P.

Nagaraj, AIR 1972 Mys 44;

(h). Natesa Naicker vs. Sambanda Chettiar, AIR 1941

Madras 918;

(i). Tinkari Sen vs. Dulal Chandra, AIR 1967 Cal. 518;

(j). M.M. Thomas vs. State of Kerala, (2000) 1 SCC

666;

(k). M.V. Elisabeth vs. Harwan Investment & Trading

(P) Ltd., AIR 1993 SC 1014;

(l). A.R. Antulay vs. R.S. Nayak, (1988) 2 SCC 602;

(m). Green View Tea & Industries vs. Collector,

Golaghat, (2004) 4 SCC 122;

(n). Common Cause vs. Union of India, (1999) 6 SCC

667;

(o). Board of Control for Cricket in India vs. Netaji

Cricket Club, (2005) 4 SCC 741;

(p). Rajesh D. Darbar vs. Narasingrao Krishnaji

Kulkarni, (2003) 7 SCC 219;

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C.M.R.A. No.417 of 2023 (M/S M.M. I. Tobacco

Pvt. Ltd. And another vs. Iftikhar Alam).

(q). Smt. Yasmeen Zia vs. Smt. Haneefa Khursheed and

others, 2024 (2) ADJ 709;

(r). Nagesh Datta Shetti vs. State of Karnataka, (2005)

10 SCC 383;

(s). Naresh Shridhar Mirajkar and others vs. The State

of Maharashtra and another, AIR 1967 SC 1;

(t). State of U.P. and others vs. Shyam Lal, 2021 (0)

Supreme (All) 750.

CONTENTION OF RESPONDENT:

15. Shri Shashi Nandan, learned Senior Counsel

appearing for the respondent, vehemently opposed the

grounds of challenge by contending that since the appeal that

had been allowed by this Court, had arisen out of disposal of

the injunction application, strict rules of pleadings would not

apply, inasmuch as, objections filed by any party against the

injunction application never fall within the meaning and

import of “pleadings”. As regards defence of the respondent

based on prior user of the product, Shri Shashi Nandan has

referred to ‘para 9’ of the counter affidavit supporting

objections filed against injunction application and submits

that user of the concerned product based upon assignment

made by Ishrat Jahan in the year 1983 was clearly stated

whereas, as per ‘paragraph 14’ of the plaint of the suit, the

case of the plaintiffs was based upon deeds of assignment

executed in their favour which were subsequent in point of

time. It is, therefore, contended that prior user, having already

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C.M.R.A. No.417 of 2023 (M/S M.M. I. Tobacco

Pvt. Ltd. And another vs. Iftikhar Alam).

been brought on record by both the sides as their claim and

defence, the basic ground of challenge contained in review

application is not tenable. As regards the alleged concealment

of documents and proceedings, it is contended by both the

sides that the said disputed aspect was brought to the notice of

the trial Judge after order of remand, by filing documents to

that effect.

ANALYSIS OF RIVAL CONTENTIONS

16. First of all, as regards the proceedings held before the

Assistant Registrar-Trade Marks, the Appellate Board as well

as the Calcutta High Court, I find that these proceedings have

been brought on record by the review-applicants by means of

supplementary affidavits dated 12.12.2023 and 01.01.2024,

i.e. prior to 30.01.2024, the date on which fresh decision on

the injunction application was made by the trial court. It is

submitted by the learned counsel for the applicants that the

documents pertaining to said proceedings were filed before

the trial court, but there is no consideration of the same in the

order dated 30.01.2024.

17. This Court is not hearing an appeal against the order

dated 30.01.2024, inasmuch as, the said order is already under

challenge in First Appeal From Order No.411 of 2024 and,

therefore, all the contentions based upon any document or

otherwise, are still open to be argued by both the sides in the

said appeal. The review is restricted to the grounds mentioned

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C.M.R.A. No.417 of 2023 (M/S M.M. I. Tobacco

Pvt. Ltd. And another vs. Iftikhar Alam).

under Order XLVII Rule 1 of the Code. The law as regards

review is well settled and there is no quarrel with the

proposition of law laid down in the judgments cited on behalf

of the applicants but it is necessary to give a broader view of

the review jurisdiction of a Court of law.

18. Section 114 of the Code of Civil Procedure, being the

substantive provision for review, clearly uses the words “ the

Court may make such order thereon”. It means that power to

allow or reject a review application depends on discretion of

the Court in given facts and circumstances of a particular case

and the Court is not bound to allow the application in every

case and situation. In Thungabhadra Industries Ltd. Vs.

The Government of Andhra Pradesh AIR 1964 SC 1372,

the Supreme Court observed that a review is, by no means, an

appeal in disguise whereby an erroneous decision is reheard

and corrected, but lies only for patent error. In Aribam

Tuleshwar Sharma Vs. Aribam Pishak Sharma 1979 (4)

SCC 389, the Supreme Court observed that there are

definitive limits to the exercise of the power of review. It held

that the power of review may be exercised on the discovery of

new and important matter or evidence which, after the

exercise of due diligence, was not within the knowledge of

the person seeking the review or could not be produced by

him at the time when the order was made; it may be exercised

where some mistake or error apparent on the face of the

record is found; it may also be exercised on any analogous

ground. But, it may not be exercised on the ground that the

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C.M.R.A. No.417 of 2023 (M/S M.M. I. Tobacco

Pvt. Ltd. And another vs. Iftikhar Alam).

decision was erroneous on merits. That would be the province

of a Court of Appeal. The power of review is not to be

confused with appellate powers which may enable an

Appellate Court to correct all manner of errors committed by

the Subordinate Court. In Meera Bhanja v. Nirmala

Kumari Choudhury AIR 1995 SC 455, the Apex Court held

that review proceedings are not by way of an appeal and have

to be strictly confined to the scope and ambit of Order 47

Rule 1 CPC.

19. In Parsion Devi and others Vs. Sumitri Devi and

others 1997 (8) SCC 715, it was held that an error, which is

not self evident and has to be detected by process of

reasoning, can hardly be said to be error apparent on the face

of the record justifying the court to exercise powers of review.

In Rajendra Kumar Vs. Rambai, AIR 2003 SC 2095, the

Supreme Court elaborated about limited scope of judicial

intervention at the time of review of the judgment and

observed that the limitations on exercise of the power of

review are well settled. The first and foremost requirement is

that the order, review of which is sought, suffers from any

error apparent on the face of the order and permitting the

order to stand will lead to failure of justice. In the absence of

any such error, finality attached to the judgement/order cannot

be disturbed.

20. Thus, review is not an appeal in disguise. Rehearing

of the matter is impermissible in the garb of review. It is an

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C.M.R.A. No.417 of 2023 (M/S M.M. I. Tobacco

Pvt. Ltd. And another vs. Iftikhar Alam).

exception to the general rule that once a judgment is signed or

pronounced, it should not be altered. In Lily Thomas Vs.

Union of India AIR 2000 SC 1650, the Supreme Court said

that power of review can be exercised for correction of a

mistake and not to substitute a new view. Such powers can be

exercised within limits of the statute dealing with the exercise

of power. The aforesaid view was reiterated in Inderchand

Jain Vs. Motilal (2009) 4 SCC 665 and in Kamlesh Verma

Vs. Mayawati and others 2013 (8) SCC 320, the Supreme

Court observed that mere disagreement with the view of the

judgment cannot be the ground for invoking review

jurisdiction. As long as the point is already dealt with and

answered, the parties are not entitled to challenge the

impugned judgment in the guise that an alternative view is

possible under the review jurisdiction.

CONCLUSION ON SECOND ASPECT

21. Having heard learned counsel for the parties and

having examined the ratio laid down in the authorities

referred to hereinabove and after carefully examining the

order sought to be reviewed in the facts and circumstances of

this case, I find that while remanding the matter to the trial

court for a fresh decision on the injunction application, this

Court did not record any finding on merits of the rival

contentions. The only reason for remanding the matter was

the cryptic nature of the order dated 10.10.2022, by which,

the injunction application had been allowed by the trial court

without recording any finding on three basic ingredients

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C.M.R.A. No.417 of 2023 (M/S M.M. I. Tobacco

Pvt. Ltd. And another vs. Iftikhar Alam).

necessary for grant or refusal of temporary injunction. The

appeal was decided by this Court after perusing voluminous

documentary evidence filed by the parties alongwith various

affidavits and it was clearly observed in ‘paragraph 24’ of the

order that the documents annexed to the counter and rejoinder

affidavits, either did not appear to form part of the record of

the trial court or, in case, they formed part of the record, there

was absolutely no discussion of the same in the order granting

injunction. The Court also permitted the parties to lead

additional evidence in support of their respective cases vide

‘paragraph 28’ of the order, particularly, considering the

nature of proceedings where valuable rights of the parties

arising out of Trade Marks Act, 1999 were involved and both

the parties were vehemently pressing and defending their

claims qua the product.

22. It is well settled that injunction application is decided

on the basis of stand taken in the affidavits as well as

documents annexed thereto and focus is on prima facie case,

balance of convenience and irreparable loss only. The

consideration of an injunction application cannot be equated

with holding of full-fledged trial of the suit itself where

decision is made on the basis of primary and secondary

evidence led by the parties during the course of trial. Before

this Court, at the time of hearing of the appeal, both the

parties vehemently pressed documents annexed to their

affidavits, either before the Court below or before this Court

and pressed and defended their alleged rights qua trademark

as well as user/prior user of the product. Despite the same,

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C.M.R.A. No.417 of 2023 (M/S M.M. I. Tobacco

Pvt. Ltd. And another vs. Iftikhar Alam).

this Court neither expressed any final or even tentative

opinion on the merits of rival claims of the parties nor did it

record any finding thereon, and, admittedly, the parties led

additional evidence before the trial court in pursuance of the

order of remand. If the documents already on record or those

subsequently filed as additional evidence have or have not

been considered or wrongly interpreted by the trial court in its

subsequent order dated 30.01.2024, it may be a matter of

scrutiny in pending appeal against the said order but cannot

be a ground for reviewing the remand order.

23. In view of the above discussion, the respondent

succeeds on second aspect and I do not find any error

apparent on the face of the record nor any other ground to

review my order of remand. As noted above, the appeal

against the order dated 30.01.2024, passed by the trial court

pursuant to the remand order, is already pending. Hence, I do

not find it a fit case to exercise my jurisdiction under Section

114 read with Order XLVII Rule 1 of Code of Civil

Procedure, 1908 to review the order of remand.

24. The review application, though held maintainable, is

dismissed on merits leaving all contentions on rival claims

open to be argued by both the sides in First Appeal From

Order No. 411 of 2024.

Order Date:-26.04.2024

Jyotsana

(Kshitij Shailendra, J.)