The defendants in O.S. No.2 of 2006 of the Additional District Court, Mavelikkara, against whom a decree of perpetual injunction has been passed from infringing the trade mark of the plaintiff, has come up in appeal, challenging the impugned judgment and decree dated 7.4.2011. 2. The suit was filed by the respondent herein, styling himself as proprietor of 'Koickal Jewellers' at Kayamkulam having branches at Haripad, Karunagappally, and Adoor and that he had obtained certificate of registration of the said trade mark 'Koickal Jewellers' from the Registrar of Trade Marks.
3. The case of the plaintiff is that he is entitled to the exclusive use of the said trade mark, as he is the owner of the said trade mark. It is alleged that the defendants, who are the appellants herein, has started jewellery business in the name and style as 'Kadukoickal Jewellers' at a place called Pallippad in Alappuzha district. It is alleged that the said trade mark being used by the appellants, is a colourable imitation of the trade mark of the plaintiff and that it is similar, both visually and phonetically and hence the suit.
4. The defendants, who are the appellants herein, contested the suit and they have filed a written statement contending inter- alia that they are entitled to make use of the said trade name being his family name. It is also contended that they have been making use of the very same trade name for other business other than jewellery business, like 'Kadukoickal Financiers, Kadukoickal Communications, Kadukoickal Motor Services, and Kadukoickal Complex'.
5. When the suit came up for evidence, it seems that PW1 was examined and Exts.A1 to 3 were marked on the side of the plaintiff. Exts.C1 and C1(a) were also marked. On the side of the defendants, DW1 was examined and Exts.B1 to B4 were marked. Some strange things happened thereafter. The then Additional District Judge, who was transferred from the station, had gone away with 83 case files of the court below. The matter was taken note of by this court and consequently, a learned Judge of this court had to suo-motu initiate proceedings by invoking the supervisory jurisdiction of this court and registered W.P.(C) No.22691 of 2010. Vide judgment dated 26.7.2010, the said Writ petition was disposed of by declaring that the decision taken in 80 cases, out of those 83 cases, a list of which has been appended with the said judgment, as nonest. It is specifically ordered that those matters have to be restored as the judgment passed by the then Additional District Judge in those cases are to be treated as nonest. The court below was directed to issue notice, either to the counsel on both sides or to the parties, as the case may be, and to dispose of those matters afresh, in accordance with law. This case also happened to be one among them. On getting the judgment in W.P.
(C) No.22691 of 2010, the court below restored the suit to file in which the earlier Additional District Judge had passed the judgment by decreeing the suit, and issued notice to both the counsel. It has been shown that the evidence was completed on 25.1.2011. The matter was posted for hearing on 5.2.2011. It seems that on the next three posting dates, both the counsel represented. Again, the matter was adjourned for hearing to 19.2.2011. On 19.2.2011, the plaintiff was represented and there was no representation for the defendants. It seems that on that day, the matter was taken up for judgment by the court below. After many adjournments, the court below finally decreed the suit on 7.4.2011.
6. Heard the learned counsel for the appellants, Sri. V. Philip Mathews and the learned counsel for the respondent, Sri.S.Mohammed Ali Rafi.
7. Learned counsel for the appellants has, at the outset, pointed out that the entire matter requires re-consideration by the court below, as the matter was not heard by the court below. Learned counsel for the appellants has invited the attention of this court to the diary proceedings of the court below in the matter, which clearly shows that the matter was not heard by the court below. Even though it has been noted in the diary proceedings that the evidence was completed on 25.1.2011, it seems that the evidence was not recorded by the concerned Judge, who passed the impugned judgment and decree, whereas the evidence was wholly recorded by his predecessor in office, against whom the order was passed, by this court, in the Writ Petition. It seems that the evidence was finally recorded on 28.10.2008. DW1 was examined on 28.10.2008. Especially in a case wherein the evidence was recorded by some other officers, the court below ought not to have passed the judgment, without hearing both the learned counsel for the parties. As pointed out by the learned counsel for the appellants, the judgment pronounced by the court below, without hearing the defendant in the matter, has resulted in substantial miscarriage of justice.
8. Another aspect that has been pointed out by the learned counsel for the appellants, is that even though the suit was filed and framed as if one filed by the plaintiff in his capacity as the sole proprietor of the proprietary concern, when evidence was tendered by the plaintiff as PW1, he had clearly admitted that his business named 'Koickal Jewellers' is not a proprietary concern; whereas, it is a partnership firm of which one Mohammed Riyas is the Managing Partner. When he was asked about the names of other partners, he had gone to the extend of deposing that over and above him and Mohammed Riyas, there were many other partners. It seems that the suit is filed by PW1 in his own name as the plaintiff and not in the name of a proprietary concern or in the name of a partnership firm. If he was a proprietor and the suit was filed in the name of a proprietary concern, he could have well maintained the suit under under Order XXX Rule 10 of the Code of Civil Procedure. In the case of a partnership firm, as per the provision contained in Order XXX Rule 1 of the Code of Civil Procedure, two or more partners may sue or be sued in the firm name, of which such persons were partners at the time of the accrual of the cause of action. Here, the plaintiff has opted to sue in his name styling himself as the sole proprietor of such a proprietary concern. At the same time, he has furnished evidence as PW1 that it was a partnership firm. Any partnership deed has not been produced. Matters being so, the suit as framed, is not maintainable. Of course, it is a technicality, which can be corrected, if the plaintiff is so advised.
9. Over and above the aforesaid aspects, the learned counsel for the appellants has pointed out that the term 'Kadukoickal' is a family name of the defendants and by the use of the same, the alleged trade mark of the plaintiff cannot be infringed. It is also argued that the said trade mark being used by the defendants for many business of their own, cannot be styled as colourable imitation or deceptively similar imitation of the trade mark of the plaintiff. Those matters do not arise for consideration at present.
10. Learned counsel for the respondent has sought for an opportunity to correct the technical error that has been crept in the plaint. Especially, when the mater was not heard by the court and the judgment and decree was pronounced and decree was drafted without hearing the parties, this court is of the view that the entire matter requires re-consideration by the court below, for which the impugned judgment has to be set aside and matter has to be remitted to the court below.
11. It is only just and proper in the interest of justice to permit both the parties to amend their pleadings suitably, if they are so advised, on such remand. They shall be allowed to adduce fresh/further evidence in the matter, if any. Thereafter, the court below shall hear both sides and dispose of the suit quite independently, that too untrammelled by any of the observations made by the court below, in the impugned judgment.
In the result, this appeal is allowed and the impugned judgment and decree are set aside. The suit is remitted back to the court below for fresh disposal, in accordance with law, as aforesaid.
The parties shall appear before the court below on 7.8.2014.
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B.KEMAL PASHA, JUDGE dl // TRUE COPY //