A R CANGADHAR AND CO NIRMAL ADILABAD Vs. CUM OF POLICE MALLIAH RAJESHWAR AND CO ARMOOR TALUQ NIZAMABAD

JUDGEMENT

(1.) THE above Civil Revision Petition and the appeal were filed against the order of the District Judge, Nizamabad in I. A. No. 95 of 1961 in O. S. No. 2 of 1961 on his file. As some doubt was felt whether an appeal lay against the order in question, an appeal as well as the Civil Revision Petition were filed. When these cases were taken up for hearing, it is represented by the learned counsel for both sides that the appeal is maintainable and that the Civil Revision Petition is, therefore, not maintainable. The facts which gave rise to this appeal are as follows :

(2.) IT is alleged in the plaint that the 1st plaintiff had been adopting and using the distinctive label containing as its essential feature the figure of a bearded man with a sash running up across, over his right shoulder from below his left arm and a piece of cloth held falling across his left out -stretched forearm. In that label, the name of 'Rajeshwar' in Telgu script occurs below the aforesaid essential feature of the figure of the bearded man. On either side of that central figure, there are rectangular devises placed in a slanting manner which contain the words 'Police Malliah Rajeshwar' in Telgu script on the left panel and in Hindi script on the right panel. Along with this, a similar label was used with a bust of a younger beardless man with a cap on his head and buttoned up coat right in the centre in place of the bearded man. The said labels had gained great reputation and recognition and are exclusively associated by the trade and the public with the goods of the plaintiffs over a substantial period of years. The 2nd plaintiff, who is a partner of the 1st plaintiff's firm applied for and obtained registration of the said trade mark under the Trade Marks Act V of 1940 which is now replaced by the Trade and Merchandise Marks Act (Act No. XLIII of 1958). The registration was with effect from 21st April, 1949 and was numbered as 349 Hyderabad.

(3.) IT was on that very same day that the suit was filed along with this application for an injunction, I. A. No. 95/61 and the plaintiffs got an interim order of injunction on the same day. The plaintiffs also filed a criminal complaint against the 2nd defendant in the Court of the Munsiff -Magistrate, Bodhan; but it was dismissed. Ram Das and Company was dissolved on 31 -10 -1959 and subsequently defendants 1 and 2 were using the mark in question. There are now two suits pending O. S. Nos. 13/60 and 16/60 to which the 2nd plaintiff is a party and which related to the affairs of the dissolved firm, "Ram Das and Company". It is further stated that the 2nd defendant was selling and manufacturing the beedies under the name of Gadge Maharaj for the last 16 years, firstly, as a partner of P. M. Ram Das and Co., and later on from November, 1959 as the proprietor of A. R. Gangadhar and Co., and that the act of the plaintiffs in getting the mark registered with a change in the name only as "Police Malliah Rejeshwar" is fraudulent and does not affect the rights of the defendants 1 and 2 to use the label with the name of "Saint Gadge Maharaj". It is also stated in the counter affidavit filed in I. A. No. 95/61 that the accounts of the defendants 1 and 2 right from 1946 showed that they are manufacturing beedies end selling them with the picture and label of "Gadge Maharaj" and that every year their accounts were scrutinised by the Income -tax Department and that those accounts pertain to "P. M. Ram Das and Co.", till 1959 and that the bill books from 1946 also showed, that the defendants 1 and 2 were manufacturing and selling Gadge Maharaj beedies.