Pannalal Jangid vs Ichraj Bai Choradia and Others

Budihal R.B., J.—1. These writ petitions were filed challenging the order passed by the trial Court as per Annexure-A - I.A. No. 7 and also the order of trial Court passed on I.A. Nos. 5 and 6.

Respondent/plaintiff filed a suit for permanent injunction to restrain the defendants, who are the writ petitioners herein, from using the trademark of petitioners in any manner well established "Panna" used by the plaintiff for the porcelain electrical fuses and switches and other electrical goods by using offending trademark "P.J. Panna" and also to restrain second defendant from manufacturing and selling the porcelain fuses and other electrical goods by using the trademark in any deceptive manner similar to the trademark of the plaintiff and to direct the defendant No. 3 not to accept or issue advertisement on behalf of first defendant in respect of the trademark of the plaintiff.

The suit summons were issued to the defendant Nos. 1 to 3 in the said suit. In reply to service of suit summons, the defendants have not at all appeared in the said matter and they have been placed ex-parte. Plaintiff proceeded in the matter and has given his oral evidence and also produced necessary documents in support of the pleadings that has been made in the plaint. Said suit came to be decreed and the reliefs as claimed in the suit as against the defendant Nos. 1 and 2 restraining them from using the trademark of plaintiff and so also the direction from the Court restraining the defendant No. 3 from giving advertisement on behalf of defendant Nos. 1 and 2 by using the trademark of the defendants is also issued in the said suit. The judgment and decree passed by the Court below was not at all challenged by the writ petitioners, who were defendant Nos. 1 and 3 in the said suit. Hence, judgment and decree passed by the trial Court becomes final.

Subsequently, the respondent/plaintiff filed an application under Order 21 Rule 32 CPC and the writ petitioners herein also filed two (2) applications i.e., I.A. Nos. 5 and 6 under Order 21 Rule 26 CPC. Said applications were opposed by both the sides by filing their objections statement.

The matter was heard by the Executing Court. On the basis of the application filed i.e., I.A. No. 3, attachment warrant of movables of the judgment debtors pertaining to the trademark "Panna" was issued by the Executing Court. Because of this reason, the judgment debtors filed the applications I.A. Nos. 5 and 6 requesting the Court to stay the proceedings.

It was the contention of the writ petitioners herein that against an ex-parte judgment and decree passed in O.S. No. 137/2001 Misc. Application No. 678/2013 has already been filed and same is pending disposal on the file of the said Court. They have also contended that on the basis of the ex-parte judgment and decree the plaintiff is taking the steps in the matter. Therefore, in case if the plaintiffs are proceeding in the matter then they will be put into irreparable hardship and injury, for this reason they have filed two (2) applications. It is also the contention of the writ petitioners that the said trademark is not at all registered in the name of the plaintiff and false submission has been made before the Court for obtaining the judgment and decree in the matter.

On the other hand, it is the contention of the respondent/plaintiff in support of the application I.A. No. 7 that the plaintiff is using the trademark since long and they have filed the application seeking registration, which was pending. It is also their contention that the defendants though served with the suit summons in the year 2006 & 2007 respectively, even then they have not contested the suit and it is in the year 2013 when the Execution Petition was filed for executing the judgment and decree. Then with an intention to drag on the proceedings they came up with the applications - I.A. Nos. 5 and 6.

Trial Court heard the counsel of both sides on all the three applications. The Court has taken into consideration that when the matter was posted for return of attachment warrant of movables, learned counsel filed vakalatnama on behalf of the judgment debtor No. 1 along with no objection to the previous Advocate and to recall the attachment warrant of movables and to stay the proceedings, I.A. Nos. 5 and 6 came to be filed. Trial Court has also observed in its order that it is an admitted fact when the attachment warrant of movables was issued by the Court, was returned with a Court bailiff and in all nine items were seized and handed to the decree holder. Trial Court has observed in its order that though the judgment debtors appeared through counsel in the present case i.e., Execution Petition in the year 2006-2007, but till 2013 they have not filed any objection to stay or set aside the decree obtained by the decree holder. Trial Court has also considered these documents produced by the respondent/plaintiff i.e., certificate of registration of the trademark issued under Section 23(2) Rule 62(1) by the Government of India and said certificate came to be renewed in the year 2013 in favour of decree holder issued in the year 1995. Document No. 2 is the certificate of registration of the trademark on 31.05.1995. Three documents is in respect of logo in the name of decree holder, copyright certificate registered in the name of the decree holder and Form of 06.09.2002. The trial Court also observed that it is specifically mentioned that the application was filed on 02.08.2001.

The Trial Court has also taken into consideration the documents produced i.e. order passed by the Deputy Registrar of Trademarks and Government of India on 11.09.2013, which discloses that application filed by the judgment debtor for registration of the trademark consisting of "Panna", came to be rejected. So the materials produced in the case before the trial Court and the decisions relied upon by the learned counsel for the judgment debtor, which are referred in the order of the trial Court, were all considered in detail by the trial Court in its order. Trial Court observed that judgment and decree passed by it becomes final and the Court cannot go beyond the decree and the application filed by other sides seeking setting aside the judgment and decree is also not yet finalised and it is pending.

Looking to the documents produced by the plaintiff''s, the learned trial Judge comes to the conclusion that when the material goes to show that the application filed by the defendants seeking registration of the trademark has been rejected as there is no merit in the contention of the other side, the conduct of the present writ petitioners is also observed that they have appeared in the very Execution Petition in the year 2006-2007 and till 2013 they have not at all taken any steps for setting aside the said judgment and decree.

I have perused the decision relied upon by the learned counsel for the petitioners before this Court in the case of ABDUL AZIZ ABDUL RAZAK AND ANOTHER VS. MUNICIPAL CORPORATION OF GREATER BOMBAY AND ANOTHER reported in , AIR 1996 SC 1350; in the case of A. CHAITHANYA VS. ADDITIONAL REGISTRAR OF CO-OPERATIVE SOCIETIES (H AND M), BANGALORE, reported in , 2013 (6) Kar.L.J. 399 and in the case of MUNILAKSHMAMMA VS. DEPUTY COMMISSIONER reported in , ILR 1988 Kar. 2814.

Perusing the facts and circumstances in the reported decision and the facts and circumstances in the case on hand and also the observation made by the trial Court in its order, they are not one and the same, therefore decision will not come to the aid and assistance of the writ petitioners herein to challenge the order passed by the trial Court on the three applications. Looking to the materials placed on record and also the legal position and as the plaintiff has established the case during the course of the time he was using trademark "P.J. PANNA", which has been infringed by the writ petitioners, ultimately he filed the suit seeking permanent injunction, which was considered and ultimately decreed in favour of the respondent/plaintiff. Considering all these aspects of the matter, I am of the opinion that the trial Court considered all the three applications and the materials produced in support of the said applications and trial Court ultimately, rejected I.A. Nos. 5 and 6 and allowed the I.A. No. 7. There are no legal and valid grounds for this Court to interfere with the order of the trial Court. There is no merit in the writ petitions. Accordingly, all the writ petitions are dismissed.