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Raj Sons and anr. Vs. Bombay Dyeing and Manufacturing Co. Ltd. and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberF.A.F.O. No. 42 of 1972
Judge
Reported inAIR1973P& H476
ActsCode of Civil Procedure (CPC), 1908 - Sections 151 - Order 39, Rules 1 and 2
AppellantRaj Sons and anr.
RespondentBombay Dyeing and Manufacturing Co. Ltd. and anr.
Excerpt:
.....is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - even otherwise, the local commissioner's report shows that the appellants are indulging in a kaleidoscopic display of different types of sign-boards at different time of the day on their different business premises like the shop or the godown. the stocking of unmarked cloth pieces which in some cases measure more than hundred yards in length, the sale of unmarked handkerchiefs, in packing boxes of the plaintiff-respondents and other like items in the list enclosed with the report of the local commissioner give one the impression that..........defendant-appellants, in their absence, to stop displaying the trade name 'bombay dyeing' on their sign-boards, printed letter heads, cash memos, paper bags etc. on the application of the plaintiff-respondents under order xxxix, rules 1 and 2, read with section 151 of the code of civil procedure. in their plaint and the application for temporary injunction, the plaintiff-respondents had alleged that the appellants were selling goods manufactured by other mills as the goods of the plaintiffs and were guilty of the offences of passing off of inferior goods and the piracy of the plaintiffs' trade name. 2. the trial court had appointed an advocate as a local commissioner in the case. he had visited the business premises of the appellants and had submitted a list of their stocks along with.....
Judgment:

1. By the impugned order dated 11-2-1972, the trial Court had, after hearing the parties, confirmed its earlier order dated 14-1-1972 directing the defendant-appellants, in their absence, to stop displaying the trade name 'Bombay Dyeing' on their sign-boards, printed letter heads, cash memos, paper bags etc. on the application of the plaintiff-respondents under order XXXIX, Rules 1 and 2, read with Section 151 of the Code of Civil Procedure. In their plaint and the application for temporary injunction, the plaintiff-respondents had alleged that the appellants were selling goods manufactured by other mills as the goods of the plaintiffs and were guilty of the offences of passing off of inferior goods and the piracy of the plaintiffs' trade name.

2. The trial Court had appointed an Advocate as a Local Commissioner in the case. He had visited the business premises of the appellants and had submitted a list of their stocks along with his report dated 30-1-1972. The allegations about the passing off of spurious or inferior goods manufactured by other as the goods of the plaintiff-respondents were materially borne out by the list of stocks found on the appellants' premises. Even otherwise, the Local Commissioner's report shows that the appellants are indulging in a Kaleidoscopic display of different types of sign-boards at different time of the day on their different business premises like the shop or the godown. Some of these sign-boards have been painted on cloth and are used to cover up the regular sign-boards, more permanently installed on the shop. The words 'Bombay Dyeing' have been given an unnatural prominence on these sign-boards and may seem to create the impression in the minds of the public that most of the goods being sold on the shop are the goods manufactured by the plaintiff-firm. The stocking of unmarked cloth pieces which in some cases measure more than hundred yards in length, the sale of unmarked handkerchiefs, in packing boxes of the plaintiff-respondents and other like items in the list enclosed with the report of the Local Commissioner give one the impression that everything being done on the appellants' shop is not really fair and above board. The order under appeal does not have the effect of stopping completely or even partially the carrying on of the appellants' business in their own name of Messrs Raj Sons. In one of the sign-boards, the words 'Bombay Dyeing' which are the trade name of the plaintiff-respondents have been displayed in letters which are as big as the letters used for displaying the appellants' own business name. The names of the other concerns whose goods are available at the appellants' shop have not been given in these sign-boards. A different view could have been taken if the appellants had been displaying all these names of the manufacturers, whose goods they were selling at their shop without any undue prominence having been given to the words 'Bombay Dyeing'. The allegations about passing off of inferior or spurious goods as the goods of the plaintiff-respondents and the piracy of their trade name cannot, therefore, be described to be absolutely without any basis.

3. Shri Thapar, the learned counsel for the appellants, argued that until about two years before the filing of the present suit, the appellants were the partners of Bansal and Company who are the local stockists of the plaintiff-respondents. The present suit is said to have been filed on the instigation of Bansal and Company. The shop in which the joint business was being carried on had belonged to the appellants and continues to be in their possession even after the dissolution of the partnership firm. This would not, however, justify the abuse or unfair use by the appellants of the plaintiff-respondents' trade name even if the appellants were stocking for sale mostly the goods manufactured by the plaintiff-respondents. The apprehension of the plaintiff-firm and the trial Court that the appellants may take unfair advantage of the use or abuse of the plaintiffs' trade name cannot, therefore, be described as absolutely without any basis.

4. I see no grounds for interference and dismiss the appeal. Parties are, however, left to bear their own costs.

5. Appeal dismissed.


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