4. Standard sentences (which are only a few examples and not complete list) for beginning of the “Grounds” in any pleadings (whether Suit, Writ Petitions, Criminal Complaints, Special Leave Petitions, Appeals etc) are given below. After these words, the “point” which affects the Petitioner/ Complainant/ Appellant should be written. It is up to the person who is drafting, to decide, whether he want to write “Because” or “That”.
i). That the Respondent which is a Government Office/ Trial Court/ First Appellate Court/ High Court had erred in law in coming to the conclusion that .....
ii). That the Respondent which is a Government Office/ Trial Court/ First Appellate Court/ High Court has miserably failed to consider and appreciate that there was considerable delay in the ....
iii). That the Respondent- Police/ Investigating Agency/ Trial Court/ First Appellate Court/ High Court's view while considering the defence version/ story and evidence led, regarding the injuries of Shri ... is illegal/ erroneous.
iv). That the Respondent- Police/ Investigating Agency/ Trial Court/ First Appellate Court/ High Court failed to consider and appreciate that the testimony of injured witnesses ....
v). That the Respondent- Police/ Investigating Agency/ Trial Court/ First Appellate Court/ High Court while dealing with the submission of condonation of delay ...
vi). That the Respondent- Police/ Investigating Agency/ Trial Court/ First Appellate Court/ High Court have erred in law in not giving any valid reason regarding this aspect, which has resulted in grave injustice to the petitioners.
vii). That the High Court failed to consider and appreciate that the trial Court had recorded conviction/ acquittal on the testimony of highly interested witnesses without any independent corroboration.
viii). That the learned Trial Court as also Hon'ble High Court have erred in law in the facts of the present case while convicting and sentencing the petitioners ...
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CHAPTER-3. INJUNCTION SUIT – STAY : PERMANENT AND INTERIM
1. Injunction Suit is a litigation, through which the plaintiff prays for direction to be issued to the defendant, to refrain from doing certain activities or to do a particular activities or thing. The law is to be read from the Specific Relief Act. Also other Acts, from which the particular Rights are deriving are to be studied, like the Trade Mark law, copyrights law, service and labour law. Cases are filed following procedures of Code of Civil Procedure, 1908. In the Dictionary of the Legal Eagle software, following meaning is given: “A court order that prohibits a party from doing something (restrictive injunction) or compels them to do something (mandatory injunction)”.
2. Drafting difficulties will arise, normally only in Property disputes, where the Value of the property will necessitate in huge Ad-valorem charges. At that time, through Drafting skills, if efforts are made only to get injunction on the defendant, that may result in failure. In Service Matter and other cases, normally the value of the Cause of Action will be less, thus the “ad-valorem” difficulty is not likely to raise.
3. Two Specimens of Injunction suits are given in this book, under the Trademark and copyrights Act. A few examples of failed drafting are given from Judgements, to make an efforts that, similar mistakes will not be repeated.
4. In the prayers, the word “Injunction” is used repeatedly, having prefix of Permanent, Mandatory, Prohibitory, Restrictive etc. However, when it is about life of the Injunction order, following terms are used: Interim = A temporary court order; intended to be of limited duration, usually just until the court has had an opportunity of hearing the full case and make a final order. Interlocutory injunction = An injunction which lasts only until the end of the trial during which the injunction was sought. (Quoted from Dictionary of legal eagle (Delhi). There is another more short living injunction, issued in emergency situations: “Ad-interim orders” it is valid only till the Interim orders are passed and are passed ex-parte. In this, the permanent injunctions are filed as separate Suits/ plaints. However they can be filed as Writ petitions if the defendant is Government and no oral evidence will be required to decide the case.
5. The Defendant have first step of EITHER filing of Written Statement OR filing of an Application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 saying that, there is no cause of action.
6. The Injunction suit suit is normally a case of savings in Court fees. If proper dispute/ cause of action is pleaded, huge amount will have to be given as Court Fees. Thus, there is a tendency of filing a Suit for Injunction only, with less Court fees. Some times, the Defendant fail to raise this objection effectively, but there are occasions, the Plaintiff's suit and Appeal will be dismissed with Costs. One such example is given as follows:-
2009 (160) DLT 22, Davender Lal Mehta Versus Dharmender Mehta & Anr.; in this from Paras 2, 3, 4, 24, 27, 28 and 29, the following may be read: The brief facts of this case are that appellant is the father of respondent No.1 and husband of respondent No.2. He filed the present suit for permanent injunction on 24th September, 1999, on the allegations that, he is owner in possession of property No. D-135, Anand Vihar, New Delhi and this property has been acquired by him from his previous owner. Respondent No.2 has been cruel towards him. Sometimes on account of torture committed upon him, he goes and sleeps in the house of his other son, Sh. Bhupinder Mehta at A-144, Anand Vihar, New Delhi, though appellant permanently resides in the property in question and all his goods and belongings are lying there. (3). It has been further alleged that respondent No.1 is not permitting the appellant to enter the house, though the appellant is owner in possession of the property. Respondent No.1 is living in this property illegally and without any authority of law and appellant is thus entitled to damages for use and occupation of the property by respondent No.1. (4). Appellant thus sought a decree for permanent injunction in his favour, and against respondent No.1, restraining him from entering upon, living or otherwise keeping any of his goods in property in question. It was also prayed that respondents be restrained from causing any interference in the peaceful enjoyment of the property by the appellant and his family members and respondents be restrained from causing any hindrance/interference in the egress and ingress of appellant and his other son and his family, from entering upon the said property and from removing or bringing in any goods and belongings of the appellant and his other son. (24). Since the defendant No.1 has, admittedly, been in occupation of the suit premises, even if he is an unauthorized occupant, the plaintiff cannot seek to recover possession from him simply by seeking a permanent restraint order against him from entering upon the suit property or living therein or keeping any of his goods there. The proper remedy would be to bring a suit for recovery of possession from him. (27). Under these circumstances, I hold that present application for amendment of the plaint is hopelessly time barred and there is considerable delay and latches in filing of this application. Accordingly, application for amendment is also not maintainable. (28). In view of the above discussion, I hold that the present appeal as well as application for amendment are not maintainable and the same are hereby dismissed with costs of Rs.20, 000/-. and para (29). Costs be paid by the appellant to respondent No.1, within one month from today, failing which the trial court shall recover the same, in accordance with law”.
7. Injunctions Suits against Governments are equal to Writ Petitions, which can be filed in Munsiff/ Civil Judge’s Court: “Injunction is an effective method of judicial control of administrative action where the authority has acted without jurisdiction or has abused its jurisdiction or has violated the principles of natural justice. In practice injunction has proved to be a suitable remedy for the control of administrative action, but it is not resorted to because people have placed much faith in extraordinary Writ Jurisdiction remedies”. Quoted from the pages 268 and 269, of the topic “Private Law Review”, of the “Chapter:8-Judicial review of administrative action : Modes”; from the book titled Administrative Law, written by IP Massey, 4th edition, published by Eastern Book Company. The only difference in a Mandamus Writ Petition and Mandatory Injunction Suit (or any other nature), in the Writ Petition, the witnesses are to be made Proforma-Respondents and they will have to file Counter Affidavit, even then if Disputed Question of Facts are arising, the WP can be dismissed with permission to file Civil Suit. When a Civil Suit is filed, the witnesses need not be defendants, but they should be taken by the Plaintiff to testify or their presence can be procured by Summons. In the WP, the witnesses or Proforma Respondents are normally not cross-examined, thus disputed Facts cannot be determined; but in Civil Suits, they can be cross examined.
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STAY ORDERS (TEMPORARY INJUNCTIONS)
8. These are Temporary injunction, interim injunction, ad-interim injunction etc. Their meaning is already given in this chapter, which need not be repeated for the sake of brevity. They are also called Stay Orders. These are prayed in Interlocutory Applications or Miscelleneous Applications filed under order 39, Rules 1 and 2 of the Code of Civil Procedure, 1908. Their violations are contempt of Court and can be redressed through Applications moved under Rule 2A of Order 39, Code of Civil Procedure, 1908.
9. The Object of this injunction is to grant preventive relief. They remain operational for a specified period and according to the circumstances it can be prayed at any stage of the proceedings of the Suit or Writ Petitions.
10. Following are the essential allegations required in an Application for this relief:- (1) Strong prima facie case with the Plaintiff/ Applicant. (2) Balance of Convenience is with the Applicant. (3) There will be irreparable loss if this injunction is denied. (4) Said loss cannot be adequately compensated with money. And (5) granting of injunction will not amount to decreeing of the suit at this stage itself.
SPECIMEN PLEADINGS u/o-39, Rules 1 and 2 of the CPC.
The cause title etc are not written here, but only requisite paragraphs and prayers are written:-
MOST RESEPCTFULLY SHEWETH:-
1. The Main Suit is filed before this Hon'ble Court for the dissolution and partition of properties between the parties who are Partners of a duly registered partnership firm. Schedule of properties are also duly annexed with the Suit.
2. That the defendant who had been the Active Partner, and the Plaintiff had been the Sleeping Partner, the defendant is having real possession and control of entire suit property, and others do not recognize the ownership of the plaintiff.
3. That the defendant is an extravagent person and spends money lavishly. He is a person who consume a lot of alcohol and have all other bad habits, which cannot be narrated being if the plaintiff will not be able to prove, he may be subjected to defamation proceedings.
4. That, one month prior to institution of the suit, the defendant had mortgaged 100 sq.yards of vacant land, to Mr.xyz, aged...yrs, son of Mr.abc, address:-.... for a huge amount of Rs....., which is not logical, it may be possible that, part of that amount might have been received back by the defendant illegally, so as to increase financial burden upon the Partnership Firm illegally, to clear the said mortgage.
5. That the defendant is further trying to sell off the properties in the schedule at amounts not known to the plaintiff/ Applicant and to the persons who could not be identified by the Applicant.
6. That, there is every possibility that, the defendant may waste entire property prior to decision of the main suit for partition.
7. Strong prima facie case with the Plaintiff/ Applicant, because, he had filed Documents in Original in the Main Suit to prove the Partnership firm and co-ownership of the properties mentioned in the Schedule to the suit.
8. Balance of Convenience is with the Applicant, because the mortgage done by the defendant and other alleged behaviours resulted in dissolution of partnership and partition of properites proves balance of convenience. Following are the other reasons:-...
9. There will be irreparable loss to the Plaintiff/ Appellant, if this injunction is denied.
10. Said loss cannot be adequately compensated with money to the Plaintiff/ Appellant And
11. The Plaintiff/ Appellant submits that, granting of injunction will not amount to decreeing of the suit at this stage itself.
PRAYER:- In the above stated facts and circumstances, in the interests of justice, this Hon'ble Court may be pleased to grant temporary injunction to restrain the defendant from wasting, damaging, mortgaging, leasing or alienating any part of the Suit Property, until the disposal of the suit (or until vacation of this Interim orders).
And for this act of kindness the humble applicant shall ever duty bound pray.
Place:... date...
Sd/- Applicant/ Plaintiff. Through Counsel.
(Note:- for the sake of brevity, the Verification, Affidavit etc are not drafted with this specimen).
FINAL SUBMISSIONS BY THE AUTHOR: Courts will grant relief of injunctions only based on Merits. It can be in any type of litigations, whether Civil, Labour, Service or Contractual cases. In fact, almost all the directions are termed “Injunction” in Subordinate Courts and Original Side of the High Courts.
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CHAPTER-4 : Specimen No-1 of Civil Suit
POINT TO NOTE:- In the book, in this Specimen and all other specimens, to avoid blank spaces in the pages, no “space” is given between the paragraphs. However, while filing in the courts, there should be at least one line space between the paras, for easy comprehension.
COPYRIGHT AND TRADEMARK “PASSING OFF” CIVIL SUIT
(this suit have 33 defendant, but a short sample is not given by the Author, to help the Patrons to understand complete difficulties to get justice)
(it is not skelton, but complete in all aspects).
Notes:-
1. In this Copyrights/ Trademark suit, it can be seen as a possible Hazard for the Plaintiff that, after he had issued Pre-suit Notice, the person who had been Passing Off the Books had filed a Suit under relevant sections, to restrain the Plaintiff from such threats, at Mumbai Court. It is like how a tenant can file for “restraint order” against the Land-lord. It does not mean that, sending “pre-suit notice” had been a foolishness for the Plaintiff. In reality, the Author had seen a Case at Hon'ble Delhi High Court, in which the litigation had been involving the name “James Bond”, in which the Plaintiff had issued Objections to the Government through Trade Mark and Copyright Registrars, but not to the Person who want to commit Infringement/ Passing Off, and Hon'ble Mr. Justice Vikramjit Sen had refused to give “interim relief” saying why you did not issue Notice to the Individual. It means, if Pre-suit Notice is issued, the Offender will file an Injunction suit to restrain Plaintiff from continuing threat; but if no Pre-Suit is issued, no reliefs will be granted by the Court, upon filing of the Suit.
2. Place of suing should be at the place of commission of offence of Passing Off, by respondent, and not any other place, wef 2005
3. The Affidavit is not given in this sample Civil Suit.
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Short Sample:- (Hence the facts which should be proved to win the case is not written in this short sample, nothing can be proved by leading evidence, thus the Author do not recommend this much short or little Civil Suits to prove Passing Off allegations).
IN THE COURT OF HON’BLE DISTRICT JUDGE, TIS HAZARI COURTS, DELHI
Original Suit No. ... of Year...
Mr.aaa
... Plaintiff
VERSUS
M/s ccc Publications & 32 Ors.
... Defendants
SUIT FOR PREVENTING COUNTERFEITING DECEASED AUTHOR’S TRADE NAME AND TRADE MARK BY HIS SON, GHOST AUTHORS AND PUBLISHER DEFENDANTS.
Most Respectfully Sheweth:-
1. The Plaintiff is owner of the copyrights of 126 books, written by the deceased author Mr.zzz who had the pen name King Cobra. However, it is found in the market that, the Defendants 1 to 13 had got written books from Ghost authors and published other xxx number of books in the Trade name/ Pen name King Cobra, which books are Passing Off of the Books and an offence to the Society. Those details are given in the Annexures.
2. This Hon'ble Court have Territorial Jurisdiction and Subject matter jurisdiction to hear and decide this suit.
3. Prayers:
xxx, xxx.
Signatures Verifications, Affidavits etc.
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Correct shaped sample, for a successful litigation:-
IN THE COURT OF HON’BLE DISTRICT JUDGE, TIS HAZARI COURTS, DELHI
Original Suit No. ... of Year...
Mr.aaa
... Plaintiff
VERSUS
M/s ccc Publications & 32 Ors.
... Defendants
SUIT FOR PREVENTING COUNTERFEITING DECEASED AUTHOR’S TRADE NAME AND TRADE MARK BY HIS SON, GHOST AUTHORS AND PUBLISHER DEFENDANTS.
THE LEGAL PROVISIONS TO PREVENT PASSING OFF, INFRINGEMENT OF TRADE MARK AND COUNTERFEITING ARE RELIED IN THIS SUIT.
SUIT Under Sections 29, 134, 135, Provisions for Passing Off and Counterfeiting in the Trade Mark Act, 1999
SUIT U/S 142(2), TM Act and U/S 60, “Proviso”, Copyright Act, 1957.
TO GIVE PROTECTIONS OF THE Sec. 23, 55 and 56 of the Copyright Act, 1957; TO UNKNOWN AUTHORS, WHO ARE ALSO BENEFICIARY OF THE SUIT
Sec. 80 Civil Procedure Code.
SUIT FOR DECLARATION AND THREE INJUNCTION, AND OTHERWISE AS ARE OR MAY BE CONFERRED BY LAW FOR THE INFRINGEMENT OF A RIGHT.
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MOST RESPECTFULLY SHEWETH:-
1. The names and addresses of the plaintiff and defendants are given in the Memo of Parties, which are not being repeated for the sake of brevity.
2. The plaintiff is a Senior Citizen, who had a publishing company named M/s aaa POCKET BOOKS, as a small scale industry. He had been best friend and relative of the deceased author Mr.zzz who had the pen name King Cobra. The Plaintiff holds copyrights on majority of Books which had been written by the deceased author Mr.zzz who had the pen name King Cobra. This Suit is being filed to safeguard his Fundamental Rights and Legal Rights, as ensured in the Trademark Act, Copyright Act, IPC, Constitution of India etc.
3. Before narrating the Cause of Action, this Hon’ble Court be pleased to permit the plaintif to explain a few words, which are common for Publishers.
3.1. First word is ‘PENNAME’ and the second word is ‘TRADE NAME’. When an author want to conceal his identity, he uses a PENNAME. On the other hand, the publishers usually introduce a TRADENAME, to sell their books. Usually the consumers opt for familiar authors, thus, printing books with names of different authors each month, may not give a stable income for the Publisher. An individual author may write only a few books in a year, but the publishers publish large quantity of books, for their survival. That is the reason for introduction of the TRADE NAME. The publisher employs authors, for a salary, to write books, with a contract that, copy-right shall belong to the publisher and only a take-home salary will be given to the author. If the same author write for any other publisher, he is not permitted to use the said TRADE NAME. The publisher may give same trade name for all his authors. The publisher may use more than one TRADE NAME and the same author’s books may be published by the same author, under different TRADE NAMES.
3.2. When a book is published in a “Publisher’s Trade Name”, the photograph of the author is not printed in the books. However, when a book is published in an “Author’s Pen Name”, the author may identify himself with the Pen Name and publish his photographs also, in the books.
3.3. The third word in Publisher’s world is ‘GHOST AUTHOR’. When a famous man, like a sports man or a Film Actor want to write his Auto-biography or when a politician want to write a book, to become famous as an AUTHOR, he employs a GHOST AUTHOR. In such cases, a man/ woman whose writing can be read easily and without inducing boredom or sleep, is given salary and employed to write the said ‘LITERATURE’. The said book will be published in the name of the man, who employs the ‘GHOST AUTHOR’ and not in the ‘Name’ or ‘Pen-name’ of the original author.
3.4. All these words and practices are not new to Publishers’ world, being the Sec. 57(1) of the Copyright Act, 1957, reads as follows:- “Author’s special rights... to claim authorship of the work and to claim damages for distoration, mutilation etc.”
4. The plaintiff started his publishing company “M/s aaa Pocket Books”, in the year 1967 as a small scale industry. He introduced the trade name King Cobra, in the year 1971; to print the Crime/ Detective Novels which used to be published by him. Till the year 1974, he published 8 Novels in this TRADE NAME ‘King Cobra’, written by different authors and not by the deceased author Mr.zzz who had the pen name King Cobra.
5. This Suit is about the deceased author Mr.zzz who had the pen name King Cobra, who is the father of defendants Nos. 32 and 33. He departed for his heavenly abode on dated.... The Original Death Certificate of the deceased, along with his original photograph is Annexed herewith and marked ANNEXURE. The typed true copy of the Death Certificate and photocopy of the photograph had been supplied to all the defendants at Pre-Suit Notice stage, which had not been denied till now. Those documents will be provided to the Defendants, alongwith copy of the Suit, with the Process Form. Rest all Documents will have to be inspected by the Defendants, to Admit/ Deny at later stage, as per the directions of this Hon’ble Court.
6. In the year 1974, the deceased author Mr.zzz, joined with the plaintiff as a salesman. He requested the plaintiff to publish one novel written by himself. Plaintiff published the said book titled “zzz-1”, under the trade name ‘King Cobra’, which had been a great success. Thereafter, till February 1977, the plaintiff published 26 novels of Late Sh. zzz. The plaintiff and deceased Mr.zzz became such close friends.
7. During these years, the plaintiff published decea