PREME A S Vs. K K AMBUJAKSHAN

JUDGEMENT

(1.) O.S.No. 5/04 was filed before District Court contending that plaintiff is the owner and proprietor of a restaurant which serves food and beverages under the name and style "Karimpunkala". It was claimed that he was running the business and serving food and beverages in that name and style for the last several years and thereby acquired a good will and wide publicity and he is the owner of website www.Karimpumkala.com. It was also claimed that he participated in several food festivals and exhibitions and laurels and respondent is conducting toddy shop No. 22 on the side of M.C. Road, Kottayam and is passing off the food items in the name of Karimpumkala, after exhibiting the name Karimpumkala and respondent cannot be permitted to pass off the service in the trade mark of the petitioner. He sought a decree restraining respondent from using the name "Karimpumkala". Petitioner also contended that he had applied for registration of trade mark Karimpumkala before the Registrar of Trademarks, Chennai. Plaintiff filed I.A. 897/94 seeking an order of temporary injunction restraining defendant and his men from infringing trade mark of the plaintiff and also resorting to passing off action. Defendant resisted the petition by filing a counter affidavit contending that he is the licensee of T.S.22 at Karimpumkala Kottayam Range for the years 2002-03 and 2003-04 and is entitled to exhibit the name of the toddy shop and plaintiff is not entitled to get a decree restraining defendants from using trade mark Karimpumkala. It was contended that plaintiff does not own any registered trade mark and he is not entitled to the order of temporary injunction sought for. It was also contended that Karimpumkala is the name of a place and plaintiff is not entitled to get any exclusive claim over the name of the locality or place and defendant is not trying to imitate the trade mark owned by the plaintiff and plaintiff is not entitled to the temporary injunction sought for. Learned District Judge after marking eight exhibits on the side of the plaintiff and one exhibit on the side of the defendant, as per order dated 15.9.04 dismissed the petition holding that no prima facie case was established. Plaintiff filed F.A.O.312/04 challenging the order in I.A.No. 897/04. Alleging that after the dismissal of I.A.897/04 defendant put up a Board by name Karimpumkala Family Restaurant on 18.9.04 with a malafide intention to pass off the service of the plaintiff and contending that defendant is not entitled to use the name of the trade mark of the plaintiff, he filed I.A. 1164/04 seeking an order of temporary injunction restraining the defendant from passing off the service of providing food and beverages in the name and style "Karimpumkala Family Restaurant" or any deceptively similar name till the disposal of suit. Defendant resisted the petition by reiterating the contentions raised earlier and additionally contending that Karimpumkala is not a trade mark and is only a set of words which can be understood only as the name of the locality in Nattakam Village and in view of dismissal of I.A.897/04 plaintiff is not entitled to file another petition for the same relief. On the side of the plaintiff-petitioner 14 exhibits were marked and on the side of the defendant/respondent Ext.B1 copy of the licence issued by the Asst. Excise Commissioner, Kottayam was marked. The learned District Judge as per order dated 25.1.05 allowed the petition and granted an order of temporary injunction restraining respondent from passing off the service of providing food and beverages in the name and style 'Karimpumkala' Family Restaurant' or any other deceptively similar name till the disposal of the suit. Challenging that order defendant/respondent filed F.A.O.23/05. Plaintiff is the respondent in F.A.O.23/05 and defendant is the respondent in F.A.O.312/04. Both the appeals were heard together. In view of the order of temporary injunction granted in I.A.1164/04 which is challenged in F.A.O.23/05, plaintiff did not seriously challenge the order in I.A.897/04. The plaintiff hereafter is referred to as the appellant and the defendant as respondent for convenience.

(2.) The contention of the respondent is that the District Judge having dismissed I.A.897/04 should not have granted an identical relief which was rejected earlier and the order in I.A.1164/04 is not sustainable for that sole reason. It was also contended that respondent is admittedly the licensee of T.S.22 of Kottayam Range at Karumpumkala and Karimpumkala is not the exclusive trade mark of the appellant and instead is the name of a place and as it is the name of the toddy shop of the respondent, he is entitled to use that name and appellant is not entitled to question the same and therefore the order of temporary injunction granted is unsustainable. Appellant on the other hand contended that I.A.897/04 was dismissed for the reason that the grievance of the appellant in that application was that respondent is running a toddy shop and selling food items therein and the grievance is not against using the name of Karimpumkala for the toddy shop for selling food items therein and therefore appellant was not entitled to the order of temporary injunction and after dismissal of the petition respondent put up a Board to the restaurant run by him as Karimpumkala Family Restaurant and the attempt is to pass off the service rendered by the appellant in selling food items and beverages in the name of Karimpumkala and as the appellant has been running the hotel in that name for the last several years and acquired a good will and reputation, respondent is not entitled to pass off the said service or business by deceptive use of the trade name and learned District Judge rightly granted the order of temporary injunction in I.A.1164/04 and the order is perfectly correct and valid.

(3.) Before considering the respective merits of the case, the scope of an appeal preferred against an order of temporary injunction in respect of a passing off action granted by the District Judge has to be borne in mind. Usually the prayer for granting of an interlocutory injunction is at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and remain uncertain till they are established at the trial. At that stage the court acts on certain well settled principles of administration of this form of interlocutory remedy, which is both temporary and discretionary. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action, if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights. The court must weigh one need against the other and determine, where the balance of convenience lies. The interlocutory remedy is intended to preserve status quo, the rights of parties which may appear on a prima facie case. The order of temporary injunction is temporary and discretionary. When an appeal is preferred challenging the exercise of discretion, the appellate court will not interfere with the exercise of discretion of the court and substitute its own discretion, except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions Apex Court in Wander Ltd. v. Antox India (P) Ltd. 1990 Supp.SCC 727 has held: